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HISTORY 

OF 

THE DEVELOPMENT OF 

Constitutional and Civil Liberty 


BEING 


A SERIES OF EIGHT LECTURES DELIVERED 
BEFORE THE POST-GRADUATE CLASSES OF 
THE UNIVERSITY OF GEORGETOWN 


mf MORRIS 

II 

ASSOCIATE JUSTICE OF THE COURT OF AFl’EAES OF THE DISTRICT OF 
COLUMHIA, AND PROFESSOR OF CONSTITUTIONAL LAW IN THE 
LAW DEPARTMENT OF THE UNIVERSITY OF GEORGETOWN 


WASHINGTON, D.C. 

W. H. MORRISON’S SON 




Copyrighted, 1898 

BY 


WALTER C. MORRISON 


PREFACE 


The following lectures, delivered before tlie Post- 
Graduate Classes of the University of Georgetown, 
in the winters of 1895-6 and 1896-7, are not intended 
to he a treatise on the subject with which they deal, 
hut simply what they purport to he, a series of lec¬ 
tures on the subject, addressed to an intelligent class 
of young men, for the purpose of stimulating inquiry 
and directing attention to the long contest, through 
which our precious heritage of constitutional and 
civil liberty has been secured. If, in acceding to a 
request for their publication, I can reach others than 
those to whom they were addressed, and I can he 
instrumental thereby, even in the slightest degree, 
in promoting a love of our free institutions and a 
patriotic desire for the preservation and perpetuation 
of our system of constitutional liberty, the publica¬ 
tion will not have been in vain. 



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HISTORY OF THE DEVELOPMENT 


OF 

Constitutional and Civil Liberty 


LECTURE T. 

A GENERAL SKETCH OF THE RISE AND PROGRESS OF 
CIVIL LIBERTY, AND OF THE GREAT PERIODS 
OF ITS DEVELOPMENT IN THE 
ANCIENT WORLD. 

The course of the world’s history, if I may lior- 
row a favorite phrase from the creed of Zoroaster, 
manifests an endless war between Ormuzd and 
Ahriman, between the powers of lig;ht and the 
powers of darkness, between the spirit of good and 
the spirit of evil; and, under proper limitations, 
the Zoroastrian idea does not differ suhstantially 
from the doctrine of onr Christian Philosophy. 
There is a never-ending war hetwec^ii good and evil, 
between man’s higher and man’s lower nature, be¬ 
tween the agencies that would raise us to the stars 
and those that would draw us down to liell; aud 
scarcely is this contest less strikingly marked in the 
affairs of civil life tlian in the domain of religion, 
where we most frequently hear of it. The war lie- 
tween principle and privilege, between human right 



6 


HISTORY OF THE DEVELOPMENT OF 


and the tyranny that would destroy God’s last, best 
gift to man, however much abused, the freedom of 
the human will, is still the war of Ormuzd and 
Ahriman, the war of good and evil. Truth and 
error—truth, one, immutable, and eternal—error, 
manifold and hydra-headed, ever changing and ever 
unstable—are matched in conflict against each other 
in political economy equally as in religion. 

By political economy here I mean all the science 
and art of government; and political economy, so 
understood, is a branch of the science of Ethics, 
which, as every graduate of this University will in¬ 
stantly recognize, must depend for its etiicacy upon 
the sanction of intellectual philosophy and upon the 
dogmas of natural and revealed religion. In re¬ 
calling this truth to your minds, I do not desire to 
ignore the fact that the founders of our American 
political system sought to draw a broad line of 
demarcation between the domain of religion and 
the domain of politics in the administration of gov¬ 
ernment. But this cardinal feature of our institu¬ 
tions you will And not to he inconsistent with the 
fact that, in the ultimate analysis, both true theol¬ 
ogy and true political economy are based upon pre¬ 
cisely the same underlying principles. 

Let us examine briefly the forces that are engaged 
in the struggle which we have indicated as in ex¬ 
istence from the beginning of the organization of 
human society. 

Aristotle, probably the greatest philosopher of all 
time, distinguished three classes or categories of 
governmental system: monarchy, aristocracy and 
democracy—or, government by one man, govern- 


CONSTITUTIONAL AND CIVIL LIBERTY, 


7 


meiit by a class or a select few, and government by 
the people of themselves; and the classification re¬ 
mains theoretically as correct to-day as when the 
famous Stagyrite first enunciated it in the. Lyceum 
of Athens. It has been asserted that in our present 
age we have successfully blended the three systems 
in one under the form of Constitutional and Kepre- 
sentative Government, and the assertion is to a cer¬ 
tain extent well founded; but the underlying prin¬ 
ciples of the several systems are still fundamentally 
and radically at war with each other as much as in 
the days of Aristotle. 

It used to be assumed by those who wrote in 
favor of the theory of the so-called “ divine right ” 
of kings to rule independently of their people— 
there are no such writers now anywhere among the 
civilized nations of the world—that Monarchy is 
the legitimate successor of the patriarchal system, 
which was beyond all doubt the primitive and orig¬ 
inal system upon which human society was first 
organized, and which was no more than a mere en¬ 
largement of the theory upon which the family was 
constituted. And yet it has been conclusively dem¬ 
onstrated by all that has come down to us of the 
early annals of our race, that the establishment of 
monarchy was effected oidy by the violent subver¬ 
sion of the patriarchal system, and that it has been 
built upon the power of brute force in direct an¬ 
tagonism to the principle of love and affection upon 
which the patriarchal system was founded. 

The Monarchy of Aristotle’s category was an ab¬ 
solute despotism. The essence of all monarchy is 
absolutism. Its type in his day was the great Asi- 


8 


HISTOUY OF THE DEVELOPMENT OF 


atic Empire of Persia, the bitter and uncompromis¬ 
ing opponent of Republican Greece. Altbougb it 
has now been discredited as a relic of barbarism by 
all the civilized nations of the world, two-tbirds of 
the inhabitants of the globe yet live under its do¬ 
minion and adhere to its theory; and three of the 
great religious systems of the world, Brahmanism, 
Buddhism and Mohammedanism, seem to be irre¬ 
trievably chained to its destinies. Degrading as it 
is to our sense of manhood from our present stand¬ 
point, yet even this type of monarchy is not without 
its advantages; and there are occasions when, in 
the midst of the turmoil that sometimes unduly 
characterizes our republican freedom, we are 
tempted to wish for “ a strong hand in a blatant 
land.” 

Aristocracy has found its strongest defence and 
fullest justification in the fact, which is undoubt- 
edl}^ a fact, that, whatever theories we may weave, 
whatever forms we may establish, all government 
at last, whether it be designated as monarchical, or 
as aristocratic, or as republican, is and always must 
be administered by a few select persons, presumably 
those most competent for the purpose; and the 
aristocratic or oligarchic system merely gives sub¬ 
stantial shape and formal recognition to the actu¬ 
ality of existing conditions. Even representative 
government, when analyzed, is found to be no more 
than a phase of aristocracy ; and it is a fact that in 
our own constitutional repul)lican system, which we 
are sometimes pleased to designate as a democracy, 
the aristocratic idea is found very deeply intrenched. 
The old Roman Commonwealth during the greater 


CONSTITUTIONAL AND CIVIL LIBERTY. 


9 


part of its term of existence, and several of the 
Greek Republics, were aristocracies; and the aris¬ 
tocratic theory gave strength and stability to the 
free institutions of Venice and Holland when Venice 
and Holland were the most prominent of modern 
Republics. The vice of the system is that it seeks 
to perpetuate the administration of government in 
a class, when nature refuses to perpetuate in that 
class the sentiment of honor, the spirit of integrity, 
and the faculty of administration. 

Democracy rests, as the best reason for its exist¬ 
ence, on the equal responsibility of all men indi¬ 
vidually to their Creator; on the freedom of the 
human will, which I have taken occasion to char¬ 
acterize, in accordance with the dictates of the 
highest philosophy, as G-od’s last and best gift to 
man; and on the equality before His tribunal which 
that freedom necessarily implies. That in this sense 
all men are created free and equal is not only an 
axiom of our Declaration of Independence, but 
likewise a fundamental dogma of our Revealed Re¬ 
ligion. For if there is any one feature of the Chris¬ 
tian Religion which is more distinctly defined and 
more urgently insisted upon than all others, it is the 
principle that individual man must stand or fall by 
his own deserts, must be judged by his own indi¬ 
vidual conduct, must answer before the judgment 
seat of God alone for himself, and is a perfectly free 
agent for the working out of his own salvation. 
The Fatherhood of God and the Brotherhood of 
Man are the two cardinal ideas of Christianity, dis¬ 
tinctly so stated by its Divine Founder himself; 
they are likewise the cardinal ideas of Democracy, 


10 


HISTORY OF THE DEVELOPMENT OF 


however they may he, on occasions, obscured by ex¬ 
traneous and irrelevant considerations. The true 
theory of Democracy is that individual man should 
be let alone to work out in his own way with his 
brother man the high destiny which the Father of 
all mankind has equally reserved for all his children. 
Upon this theory Christianity and Democracy are 
one. 

But in its practical application Democracy has its 
vice, as well as Monarchy and Aristocracy; and that 
vice is to he found mainly in the fact that in its ap¬ 
preciation of number it often ignores intelligence, 
and that the voice of the majority, by which it as¬ 
sumes to be governed, is not always the voice of the 
greatest wisdom. And yet notwithstanding this 
drawback, and notwithstanding the fact that in the 
long and dreary history of human frailty govern¬ 
ment by democracy has been the exception, rather 
than the rule, in the management of human atlairs, 
it should he noted that to the democracies of the 
world we owe nearly all that is best in our modern 
civilization,—to the Democracy of Israel our mono¬ 
theistic Religion; to the Democracy of Athens our 
literature, art, science, and philosophy; to the com¬ 
bination of Aristocracy and Democracy that con¬ 
stituted the Roman Commonwealth, and mainly to 
its Democracy, the best jurisprudence which the 
world has ever known; to the Italian Republics of 
the Middle Ages the preservation and the Renais¬ 
sance of Civilization, when Civilization was engaged 
in a death struggle with Teutonic Feudalism. 

It will he noticed that in the categories of Aris¬ 
totle there is no mention of Constitutional or Rep- 


CONSTITUTIONAL AND CIVIL LIBERTY. 


11 


resentative Government; and it lias often, therefore, 
been assumed by writers upon the subject that this 
device of ours, now universally adopted by all the 
civilized nations of the world, and wherein it has 
been sought, with more or less success, to combine 
the monarchical, the aristocratic, and the democratic 
idea, is of purely modern origin. It is very true 
that neither in the Roman Commonwealth nor in 
the Republican States of Greece do we find much 
trace of the Representative system or of Constitu¬ 
tionalism, as we now understand those terms. Yet 
the terms themselves come to us immediately from 
the language of Rome, and more remotely from that 
of Greece ; and with the words there must have ex¬ 
isted in both countries something of the fact which 
gave rise to the idea. And we shall find that in 
both the germ existed of Constitutional and Repre¬ 
sentative Government, although in a rude and un¬ 
developed state. 

The Commonwealths of Rome and Greece were, 
in their origin and early development, no more than 
mere municipal organizations,—small cities, in fact, 
with limited adjacent agriculturah territory; and 
their government originally was not substantially 
difierent from that of our old townships in Yew 
England, where all freeholders met in council to 
take measures for the general welfare. In them 
there was no occasion for the establishment of the 
complex system of check and balance that charac¬ 
terizes our modern device of Constitutionalism, and 
its invariable accompaniment. Representative Gov¬ 
ernment. And yet the Institutions of Solon and 
Lycurgus in Greece, of Minos in Crete, of Pythag- 


12 


HISTORY OF THE DEVELOPMENT OF 


oras at Crotona, and of the Twelve Tables at 
Eome, not to mention various others among the 
Hellenic States, were not merely attempts to estab¬ 
lish codes of jurisprudence, as is generally supposed, 
but likewise efforts to establish something in the 
nature of Constitutional Government, for the per¬ 
petuation of Civil Liberty. 

Various English writers would have us look for 
the origin of our Civil Liberty, and for the germs 
of the governmental institutions by which it has 
been secured, to the brutal savages who swarmed 
from Horth Germany and Scandinavia in the Fifth 
and succeeding centuries of our Era to overthrow 
in blood and slaughter the civilization of Rome. 
Some of them would seem to limit the inquiry to the 
institutions of that most specially brutal and blood¬ 
thirsty of all the Teutonic tribes, the Anglo-Saxons, 
who overran and conquered Britain and gave it the 
name of England. Others again, with a strange in¬ 
consistency and a narrow spirit of insular bigotry 
that finds no parallel outside of China, regard Eng¬ 
land as the immemorial home of Civil Liberty 
through all its manifold mutations of British, Ro¬ 
man, Anglo-Saxon, Banish, and Horman domina¬ 
tion. In this category is found even such a writer 
as Sir William Blackstone, the great Commentator 
on the Common Law of England. And in the same 
line are those English writers who are unwilling to 
admit that the introduction of Christianity into 
Britain was accomplished through Rome or h}^ any 
remote successors of the Apostles, or even by the 
Apostles themselves, and who claim a peculiar and 
early brand of the Christian Religion as having been 


CONSTITUTIONAL AND CIVIL LIBERTY. 


13 

evsta!)lishe(l in the then remote island, not hy an 
Apostle, hilt hy one Avho might be called a compan¬ 
ion of Christ, Joseph of Arimathea. 

It must he admitted that for the claim that Civil 
Lilierty originated in North Germany there is some 
warrant in the writings of one of the most cross- 
grained and ill-natnred of Eoman historians. Taci¬ 
tus, in his work, De lloribiis Germcmonim, has noth¬ 
ing hut eulogy for the institutions of the Teutonic 
ihirharians of his day, and evidently labors to es¬ 
tablish a sharp contrast between their simple man¬ 
ners and free mode of life, on the one hand, and 
the corruption and degradation of the Eoman Peo¬ 
ple under the Emperors, on the other. But the 
eulogy of such a writer as Tacitus, himself the bru¬ 
tal apologist of the crimes of Nero against Chris¬ 
tianity and the base reviler of a religious system of 
which either he was grossly ignorant, or which he 
knowingly and purposely maligned, cannot, under 
the circumstances in which he wrote, lie regarded 
as proof of anything. Of all the historians of 
Eome, the demand seems to he made upon us to 
believe him the most virtuous; the circumstances 
show him conclusively to have been the most ma¬ 
lignant of hypocrites. 

But assuming all that Tacitus says of the Ger¬ 
mans to he true, he presents to us a race of sav- 
aires, like the Nomads of the Arabian Desert, the 
ILongolian Hordes, or the Eed Indians of North 
America. These are all of the same stamp, of 
simple manners, and instinct with the spirit of free¬ 
dom, as they understand it. But we presume that 
it is not necessary at this day to show the wide 


.14 


HISTORY OF THE DEVELOPMENT OF 


chasm of distinction that exists between the so- 
called freedom of the l^omads and our theory of 
Civil Liberty. The freedom of the h^omad is law¬ 
lessness ; Civil Liberty is freedom regulated by 
law. The lawlessness of the Arabian, Mongolian, 
or American savage is as far removed from Civil 
Liberty as is the paternal despotism of China, and 
more utterly incapable of begetting it. Savagery 
cannot he the parent of Civil Liberty; otherwise 
we would long ago have had on the plains of 
Arabia the grandest of Republics, and the savage 
Iroquois would have been the founder of a noble 
American Commonwealth. The savages of ISTorth 
Germany brought nothing with them from their 
country hut an insatiable thirst for blood, and their 
conquest of the Roman Empire, as we will see, in¬ 
stead of promoting the cause of Civil Liberty, was the 
most dangerous and the most systematic attack upon 
that cause in all the history of the human race. 

To a higher and nobler source than the savages 
of Rorth Germany, to a greater and better source, 
even, than the extreme civilizations of Greece and 
Rome, is due the origin of Civil Liberty and of 
Constitutional Government. The first Constitution 
was promulgated and the first Republic was pro¬ 
claimed amid the thunders of Sinai. In the Com¬ 
monwealth of Israel, first among all the nations, were 
the principles of Civil Liberty established, and in 
the Commonwealth of Israel we find the basis, not 
alone of the religious system which we now profess, 
and which so largely constitutes what we call our 
civilization, but likewise of the political and social 
institutions which go to make up our Civil Liberty. 


CONSTITUTIONAL AND CIVIL LIBERTY. 


15 


Let us consider the conditions for a moment. 

Despotic monarchies in Egypt and Asshur and 
Babylon, despotic monarchies in Hindustan and 
China, despotic monarchies apparently on all the 
shores of the Mediterranean, dominated the civiliza¬ 
tion of the world in the Sixteenth and Seventeenth 
Centuries before the Christian Era—despotism and 
barbarism divided the world between them—and 
the dignified freedom of individual manhood, as 
well as the simplicity of the true primeval religion, 
would seen to have vanished from the world, when 
“ a dreamer of dreams ” in the Land of Midian, an 
exile from Egypt and a fugitive from Egyptian jus¬ 
tice, yet one who had been the leader of Egypt’s 
armies, the adopted son of Pharaoh’s daughter, and 
probably, therefore, the heir apparent of Egypt’s 
Queen, was divinely commissioned to restore alike 
religious truth and political freedom, both the civil 
and the religious heritage of our humanity. The 
revolt of Israel against Egypt was not only a pro¬ 
test against the peculiarly corrupt polytheism of the 
Land of the Hile, but equally and perhaps even 
more emphatically a protest against absolutism in 
government. It was, in fact, the first declaration on 
record of the rights of man. 

The Law that was promulgated upon Sinai was 
not, as will readily appear from the Sacred Books 
themselves, exclusively a code of religious belief, 
such as it is commonly understood to be, but a 
civil code likewise for the political guidance of the 
People of Israel. Then it was that Laiv commenced 
to be. Then it was that the People first commenced 
to he spoken of in connection with the Law and as 


IG HISTORY OF THE DEVELOPMENT OF 

governed only by Law. Before that time the trans- 
aetions of the world were the transactions of its 
petty tyrants. The People had no part in them 
hut slavishly to obey the behests of their rulers. 
Before that time there was no Law but the arl)itrary 
will of rulers wielding the despotism of the sword, 
or the still worse despotism of pagan superstition. 
The Institutions of Moses were the substitution of 
a government of law and by law for the personal 
government of despotic monarchy, and the Com¬ 
monwealth which he then established was a demo¬ 
cratic Federal Be})ublic, the first Republic of the 
world, and the only government, it may be added, 
that was ever established on earth for which there 
can be said to have been the immediate sanction of 
Divine authority. And the sacred penman, who 
gives us the account which we have of this Re¬ 
public for the term of about five hundred years of 
its existence, takes occasion repeatedly to assert the 
free and liberal character of its political institutions, 
for he seems to be fond of repeating the statement 
that ‘‘ in those days every man did that which was 
right in his own eyes,” and he gives as a reason for 
this the fiict that in those days there was no king 
in Israel.” 

Israel, in fact, under the Institutions of Moses, 
was a thorough Democracy, as any reader of the 
Books of Exodus, Joshua and the Judges can easily 
see. It has sometimes, it is true, been designated 
as a Theocracy, and regarded as a thing apart and 
peculiar, unlike anything else of the kind that has 
ever appeared in the world. This is a very grave 
mistake. As a characterization of the government 


CONSTITUTIONAL AND CIVIL LIBERTY. 


17 


of Israel as a government of the People hy God 
alone, their only king, through the means of the 
law which he promulgated for the purpose, the term 
Theocracy is entirely correct. But as conveying 
the idea which the word is generally intended to 
convey—that is, a government of the people hy the 
priesthood engrossing the management of all attairs^ 
civil and religious, into their own hands—the term 
was never more erroneously applied. ^Tever was 
there less justification for any assertion than for the 
statement that in this sense Israel Avas a Theocracy. 

Of the twelve Judges of Israel, so-called—though 
it would seem to he more appropriate to designate 
them as Presidents of the Hebrew Commonwealth 
—who appear to have administered the affairs of the 
Israelite Federal Union during the Golden Age of 
the existence of the Commonwealth, not one was of 
the priestly race; and there is not the slightest trace 
in the records of the nation of any priestly domina¬ 
tion during all that period, except at the very close 
of it, Avhen, as the result of bribery and corruption, 
and apparently even as the result, direct or indirect, 
of such priestly domination, the Commonwealth 
was hastening to its ruin. If there is anything pe¬ 
culiarly and conspicuously absent from the history 
of the Israelite Commonwealth established by 
Moses and Joshua, it is all indication of the theo- 
cratical idea and of priestly domination. 

The story of the doAvnfall of the Commonwealth 
of Israel throws a flood of light upon the character 
of its institutions, and incidentally upon the general 
subject of our discussion. Let us turn for a mo¬ 
ment to the author who narrates it in the First 
2 


18 


HISTORY OF THE DEVELOPMENT OF 


Book of Saiiiiiel, soiiietinies also designated as the 
First Book of Kings, and who is generally believed 
to have been tlje great High Priest, Prophet, and 
Judge of Israel, the illustrious Samuel, a true pa¬ 
triot, who mourned the deeadence of the free spirit 
of his people, and who would have prevented the 
result, if he eonld, although it is not entirely certain 
that he did not himself contrihute to that result by 
his weak indulgence towards his sons. Here is the 
story: 

“ And it came to pass that, when Samuel was old, 
he made his sons judges over Israel. And they 
walked not in liis ways, but turned aside after 
lucre, and took l)ribes, and })erverted judgment. 
Tlien all the elders of Israel gathered themselves 
together, and came to Samuel in Ramah, and said 
unto him, ‘ Behold, thou art old, and thy sons walk 
not in thy ways; now make ns a king to judge ns 
like all the nations.’ But the thing displeased 
Samuel. And Samuel prayed unto tlie Lord; and 
the Lord said unto Samuel: "Hearken unto the 
voice of the peo})le in all that they say unto thee; 
for they have not rejected thee, hut they have re¬ 
jected me, that I should not reign over them. How- 
heit yet solemnly protest unto them, and show them 
the manner of the king that shall rule over them.’ 

“ And Samuel told all the words of the Lord to 
the people that asked of him a king. And he said : 
‘ This will he the manner of the king that shall rule 
over you. He will take your sons, and appoint 
them for himself, for his cliariots, and to lie his 
horsemen. And he will take your daughters to be 
cooks and bakers. And he will take your lields. 


CONSTITUTIONAL AND CIVIL LIBERTY. 


19 


Riid your vineyards, and yonr olive yards, and give 
them to his servants. And he will take yonr good¬ 
liest young men, and pnt them to his work. And 
ye shall lie his servants. And yon shall cry out in 
that day hecanse of yonr king which ye shall have 
chosen ; and the Lord will not hear yon on that 
day.’ 

Kevertheless the ])eo[)le refused to obey the 
voice of Samuel; and they said : • IS^ay, hut we will 
have a king over ns.’ ” (1 Samuel, chap. 8.) 

The relative merits of Monarchy and Democracy 
could not have been better or more pointedly stated 
than they have been here upon the authority of 
Jehovah himself. For it is plain that it is not the 
[tersonal character of the rather worthless indi- 
vidnal who was selected to he the tirst king of the 
Israelite Monarchy that is in question, hnt Mon¬ 
archy itself as a governmental institution. And it 
is also plain tliat the Commonwealth was tlie re¬ 
verse of all that the Monarchy was threatened to 
he ; that it was a government of freedom and of 
law, in contradistinction to the arbitrary lawlessness 
of ^lonarcJiy. 

The llelirew Commonwealth, in fact, was a dem¬ 
ocratic Federal Ivepnlilic, composed of twelve equal 
and co-ordinate states, each independent in the 
management of its own local atiairs, each with its 
own autonomy, yet all constituting but one people 
and one nation Israel for the common defense and 
the general welfare. Curiously enough, it was the 
prototype of our own American Federal Kepublic; 
and before our own no other purely Federal Repub¬ 
lic ever existed than the Commonwealth of Israel. 


20 


HISTORY OF THE DEVELOPMENT OF 


Holland was not such when the States of Holland 
were independent; nor was the Hanseatic League; 
nor were the States of Switzerland before the pres¬ 
ent century; nor were the States of Greece in an¬ 
cient times. Republican Leagues there have been, 
not infrequently; T)ut it may be asserted with posi¬ 
tiveness that, before the establishment of our Amer¬ 
ican Federal Constitution, the only exemplification 
of the Federal Republican principle in government 
was the Commonwealth of Israel. And how much 
the Federal Republican principles in government 
means to the cause of Civil Liberty we will have 
occasion to see in the development of our subject. 

The spirit of freedom which characterized the 
Israelites of the Commonwealth is sufficiently indi¬ 
cated in the statement, which we have already 
cited, that in those days every man did that which 
was right in his own eyes,” and that there was then 
no king in Israel to curb or restrain their freedom 
of action. And yet the fact that the Law was 
always appealed to, and that the Law was ever pres¬ 
ent as a guide to their consciences, is sufficient to 
show that the freedom which they possessed and 
exercised was not the unrestrained licentiousness of 
savages, but true Civil Liberty, freedom regulated 
by Law. 

I have dwelt upon this matter for the purpose of 
showing that to a higher and nobler source than the 
Anglo-Saxon savages, who swarmed from the fens 
of Jutland and Friesland to establish their dreary 
barbarism upon the ruins and desolation of the Ro¬ 
man Civilization of Britain—to Jehovah himself, 
and to his chosen Legislator Moses on Mount Sinai 


CONSTITUTIONAL AND CIVIL LIBERTY. 


21 


—is due the origin of Constitutional and Civil Lib¬ 
erty. The supremacy of Law, the fixity of certain 
fundamental first principles in government, and the 
freedom and equality of all men before the Law and 
with responsibility only to the Law, which are the 
essential features of Constitutional and Civil Lib¬ 
erty, were exemplified, as we have seen, first on 
earth in the Commonwealth of Israel. 

It is to the credit of the sturdy common sense of 
the Puritans of Hew England, as well as of those 
who remained in Old England and established the 
short-lived Commonwealth that perished under the 
dictatorship of Oliver Cromwell, that they never 
prated of ‘‘ ancient liberties ’’ of the English People, 
which never at any time had existence, but confess¬ 
edly and candidly drew their inspiration and their 
aspirations for republicanism from the Mosaic In¬ 
stitutions and the example of the Commonwealth of 
Israel; and to that Commonwealth they invariably 
appealed as their model. So did John Calvin in 
Geneva; so did John Knox in Scotland. It does 
not matter here that the inspiration was tainted by 
a narrow bigotry and an insane fanaticism wholly 
foreign to the spirit of freedom which they invoked. 
What it is desired to emphasize is that it never oc¬ 
curred to them, with the dishonest disregard of 
truth which characterizes so many of the historians 
of England, to deduce the principles of Civil Lib¬ 
erty from Teutonic and Scandinavian savages. 

After a duration of about five hundred years the 
Hebrew Commonwealth fell, not from the attacks of 
external foes, but from bribery and corruption at 
home, the same causes which in all ages have proved 


22 


HISTORY OF THE DEVELOPMENT OF 


fatal to republican institutions. Tlie Israelites were 
no longer ecpial to the higli ideal of Democracy as 
established by Moses, and they sank to the level of 
the surrounding petty monarchies. And yet the 
principles of Civil Liberty never wholly perished 
from the hearts of Israel, any more tlian did the true 
religion; although it was frequently found necessary, 
in the counsels of Divine Providence, to remind 
them of both by suffering and cliastisement. Even 
under their kings—good, bad and indifferent as 
those kings were, and they were usually bad or in¬ 
different—the law was always more or less of a con¬ 
stitutional restraint u})on the arliitrary power of the 
monarch. And when the monarchy was swept 
away in the overwhelming tide of Oriental Con¬ 
quest, and Israel was ])ermitted, after the termina¬ 
tion of its Captivity, to reconstruct to some extent 
its political and social institutions, it returned to a 
modified form of democracy, under the suzerainty 
of the Persian Empire. Put it was fated a second 
time to sink under tlie weight of a monarchy, and 
then to ruin. 

The republican institutions of the (\)mmonwealth 
of Israel were not without their influence on their 
near neighbors, the Phoenicians of Tyre and Sidon 
and Aradus. Upon the advent of the Israelites in 
the Land of Canaan, the Canaanites were all gov¬ 
erned by l>etty kings, and monarchical government 
seems to have been universal among them. The 
Phoenicians were only a branch of the Canaanites, 
and their traditions represent them also as being at 
this time under the sway of monarchs and with 
forms of government not different from those of 


CONSTITUTIONAL AND CIVIL LIBERTY. 


23 


the nations around them. Soon after, however, 
they are found with republican forms of govern¬ 
ment, and it can scarcely be doubted that the re¬ 
publicanism of riioonicia was the direct result of 
the influence of the republicanism of Israel. Singu¬ 
larly, too, it was sought in the republicanism of 
Phoenicia to imitate likewise the Federal principle 
which constituted one of the peculiar features of 
the Commonwealth of Israel. And so Ave find that 
the three great Phoenician Cities of Sidon, Tyre 
and Arad established a Federal Capital, by the 
name of Tripolis (or the Triple City), as a place for 
tlie meeting of tlieir delegates, and a seat of gov¬ 
ernment for the management of the affairs which 
they had in common. 

From Tyre and Sidon and Arad republican in¬ 
stitutions were carried to Carthage and Utica in 
Uorth Africa, to Tartessus and Cades in Spain, and 
to all the Phoenician settlements Avheresoever situ¬ 
ated. In fact, Avherever Ave find the trace of Phoe¬ 
nician influence in the ancient Avorkl, we find eAU- 
dence of the establishment of republican institutions. 
Unfortunately, the greater part of the history of 
Phoenicia and of her colonies, including Carthage, 
the most famous of them all, is lost to us; and the 
insufficient and unsatisfactory information Avhich AA^e 
Inwe of their political institutions has been derived 
to us in great measure from their riA^als and their 
enemies, and through the means of Avriters Avho 
seem to have been unable correctly to estimate their 
true character. But no less eminent a critic than 
the sagacious Aristotle himself tells us that those 
institutions AA'ere greatly superior to those of the 


24 


HISTORY OF THE DEVELOPMENT OF 


other nations with which he was acquainted, includ¬ 
ing the republican States of Greece. Wherein the 
superiority consisted, he does not tell us. But when 
we consider that Phoenicia and Carthage, in the time 
of their greatness, would seem to have been com¬ 
paratively free from the frequent political convul¬ 
sions to which the Grecian States were liable, we 
may suspect that there was an element of Constitu¬ 
tionalism in their institutions, prohabl}" derived from 
the Hebrew Commonwealth, which gave them a de¬ 
gree of stability unknown in the affairs of the Hel¬ 
lenic States, and that it was this element which fixed 
the attention of the great Athenian Philosopher. 

The beacon fires of Civil Liberty, lit first upon 
the mountains of Israel, and thence spread along all 
the coasts of Phoenicia and wherever the Phoenician 
merchantman went, soon found fitting response 
along the classic headlands of Greece. Early in 
their mediaeval historjq soon after the old Achfean 
Commonwealths, to which Homer had sung his im¬ 
mortal rhapsodies, had passed away, and Hellenism, 
the second Greece, our Greece of classical renown, 
was beginning to feel its strength, under the influ¬ 
ence, no doubt, of the Phoenician example, the Cities 
of Greece became animated with the spirit of free¬ 
dom. Thebes, first of all, the most distinctively 
Phoenician City in Greece, the home of Cadmus and 
literature, and soon afterwards Athens and Argos, 
became Pepublics; and these, the three greatest 
cities of the land, were soon followed by all the 
smaller towns and cities; and republican institutions 
became universal, and monarchy an obsolete thing, 
throughout the confines of the Hellenic Pace. The 


CONSTITUTIONAL AND CIVIL LIBERTY. 


25 


republicanism of some of them, in the first instance, 
was more or less oligarchic or aristocratic in char¬ 
acter; in the great majority of them it ultimately 
became a pure democracy, but apparently without 
much of the constitutional stability that character¬ 
ized the institutions of Carthage and Phoenicia. 

The Republics of Greece were all small states. 
They were merely cities, with small adjacent and 
appurtenant agricultural territory. The expressions 
City and State were practically synonymous in 
Greece, as well as subsequently in Rome; and the 
very terms, which have become common with us 
for the designation of broader and more extensive 
rights—political freedom, civil liberty, the freedom 
of the citizen—having reference, as they do, to the 
Greek and the Latin Civitas, both meaning the 
same thing, the City—show us how identical in 
meaning were originally the ideas of liberty and 
citizenship as the prerogatives of the inhabitants of 
cities. And we may note here a curious fact, 
quite apparent to the careful student of history, yet 
wholly inconsistent with an idea that has been fre¬ 
quently entertained and expressed, that it is by and 
through the inhabitants of cities, and not by agri¬ 
cultural communities, that the principles of Civil 
Liberty have in general been propagated and per¬ 
petuated. From this statement we might except 
the land of the origin of Civil Liberty, the Com¬ 
monwealth of Israel; and, in modern times, the 
heroic Cantons of Switzerland. But in all other 
instances, both ancient and modern, it is the Cities, 
and not the agricultural communities^ that have 
always led in the contest for Civil Liberty. 


26 


HISTORY OF THE DEVELOPMENT OF 


Tlie Grecian States, as already indicated, while 
republican in form, differed greatly in the character 
of their repnhlicanism. Some were aristocratic and 
some democratic, and some were sometimes one and 
sometimes the other. Bnt whether aristocracies or 
democracies, they seem to have been wanting in 
some of the elements of stal)ility that appear to 
have cliaracterized the Phrenician institutions. Cer¬ 
tainly they were wanting in that sense of individual 
liberty and personal freedom Avliich we in modern 
times regard as essential to all repal)lican institu¬ 
tions; for State socialism in the Greek Repnhlics 
Avas almost as restrictiA^e of individnal freedom as 
Avas the monarchy Avhich they superseded and an¬ 
tagonized. And the Hellenic States likcAvise Avere 
Avanting in Avhat Ave understand as Constitution¬ 
alism ; althongh the rnstitntions of Solon and Ly- 
cnrgns, as Avell as those of Minos and 1 Pythagoras, 
seem to have been intended to he something more 
than mere codes of laAv, and to have l)een in fact 
designed as schemes for the estahlishment of some¬ 
thing like constinitional limitations upon political 
anthority. 

Where population AAvas comparatively small, as it 
Avas generally in the Grecian States—for even the 
great leading cities of Athens, Thebes, Sparta, 
Corinth and Argos, Avere insignificant in popnlation 
as compared to onr great modern cities, and even to 
some of the ancient cities of Egypt and Asia—and 
the facilities Avere great for all citizens to lie assem¬ 
bled in town meeting, there Avas no apparent neces¬ 
sity for recourse to the deAnce of representative gov¬ 
ernment. Moreover, the theory of representation 


CONSTITUTIONAL AND CIVIL LIBERTY. 




in government is, after all, only a phase of the aris- 
toeratic principle; and the tendency of the Hellenic 
mind was always towards unlimited and unfettered 
democracy, although it was democracy, as has Just 
heen stated, of a socialistic character. 

Then the Federal principle, which has come with 
us to he so vital a factor in the develo[)ment of Civil 
Liherty, seems never to have taken root in Greece, 
notwithstanding that there was ahundant oppor¬ 
tunity for it, and that on two distinct occasions it 
was sought to give it effect in the politics of the 
country. Alliances and confederations were fre- 
((uent enougli among the rfellenes, and a sentiment 
of united nationality was often sought to l)e created 
hy the wisest and greatest of Grecian statesmen. 
This sentiment found its most successful expression 
in the estahlishment of the Olympian and other 
games, at which it was sought periodically to as- 
semhle the hest elements of the riellenic Kace from 
all the regions peopled hy the TTellenes. But onl\^ 
on two occasions was there any well-defined attempt 
to establish a system of Constitutional and repre¬ 
sentative government in Greece on the lines of 
Federalism ; and, singularly enough, one of these 
occasions was towards the l)eginning and the other 
towards the close of Hellenic history. The first 
was in the estahlishment of the Amphictyonic 
(Auncil, and the second in the formation of the 
Achrean League. 

Of the former of these, the Amphictyonic Coun¬ 
cil, the scope and functions are not as well known 
as might lie inferred from the large space which it 
occupied in pulilic affairs at a certain period of 


28 


HISTORY OF THE DEVELOPMENT OF 


Hellenic history. In fact, we rarely or never read 
of it in Greek writers, except at the period men¬ 
tioned; and except at this same period, it does not 
seem to have ever entered as an active element into 
Grecian politics. And yet it seems to have been 
quite an ancient institution, its establishment dating 
back almost to iirehistoric ages, certainly to a very 
early epoch of Mediaeval Greece. Its founder, Am- 
phictyon, from whom it received its name, is pre¬ 
sumed to have been a King of Thessaly, and to 
have been the contemporary of the Spartan Law¬ 
giver Lycurgus, of Iphitus of Elis, the originator or 
restorer of the Olympian games, and of Diognetus, 
Archon of Athens, who is supposed to have fash¬ 
ioned to a very considerable extent the civil polity 
of the Athenian Republic (about b.c. 884). 

One, at least, of its purposes appears to have been 
the guardianship of the national religion of Greece, 
and especially of the sacred shrine of Apollo at 
Delphi, as a bond of common unity. But the an¬ 
thropomorphism of Greece never proved to be a 
bond of unity for the Hellenic Race. The Council 
is supposed to have been composed of delegates 
from all the States of Greece, and to have met, or 
to have been intended to meet, annually at the Pass 
of Thermopylae. But history does not record its 
meetings, if they were continued to he held after 
the hrst patriotic impulse for its establishment had 
been spent, which is exceedingly doubtful, except 
on rare occasions, and then without definite result 
for the general welfare. Once, and once only, does 
it appear to have taken an active part as a great 
factor in Hellenic politics, and that was when 


CONSTITUTIONAL AND CIVIL LIBERTY. 


29 


Philip of Macedon threatened the subversion of the 
liberties of Greece. It then came forward as the 
representative of Greek nationality, with what re¬ 
sult we well know. It was measurably, and yet not 
entirely, siiceessfnl in checking the ambitions pur¬ 
poses of that miscrnpulous and energetic monarch. 
But strange as it may seem, it makes no appearance 
at all on the stage of Hellenic history, when Philip’s 
more enterprising and more daringly successful 
son, Alexander the Great, made himself master of 
the destinies of Greece, preparatory to making him¬ 
self master also of the destinies of Asia. And yet 
Alexander, too, had recourse to a Council of the 
Grecian States, held at Corinth,—a Council neces¬ 
sarily of a Federal and Pepresentative character,— 
to commission him as Commander-in-chief of the 
Grecian forces with which he intended to invade 
and compier the great Empire of Persia. 

The second occasion on which it was sought to 
give etiect to the Federal and Pepresentative prin¬ 
ciple in government by the Hellenic States was 
when the Achaean League illumined, as with a 
crimson glory, the sunset of Hellenic greatness. 
By the Achaean League, designed by the illustrious 
Aratus of Sicyon, it was sought to combine the 
Hellenic States in a Federal organization for the 
preservation of their partly recovered liberties 
against the continued encroachments of the suc¬ 
cessors of Alexander on the throne of Macedon, to 
which it oftered a brave and partially successful re¬ 
sistance. But it was not greatly more than a patri¬ 
otic confederation, which, although it checked the 
power of Macedon, was soon compelled to submit 


30 


HISTORY OF THE DEVELOPMENT OF 


to the Mll-eoii(|iieriiig arms of Koine, and thereupon 
was dissolved forever. 

Tntiiienced by the examples of Khoenicia, Greece, . 
and Carthage, and borrowing es})ecially from the 
last-named State much for which no sufficient credit 
has ever been given, Rome arose on her seven hills, 
re}uidiated monarch}", established republican insti¬ 
tutions, and entered upon her wonderful career for 
the compiest of the world for herself and for Civil 
Liberty,—two purposes, in her opinion, not at all in¬ 
consistent with each other. And it must be ad¬ 
mitted that even now, as we look hack from the 
impartial standpoint of our Nineteenth C^entury, the 
domination of Rome over the nations was distinctly 
a step in advance for the cause of Civil Liberty, as 
well as, in general, for the cause of human civiliza¬ 
tion. The story of Rome is well known to you; 
and you can readily infer from it how true it is, 
despite many drawliacks, that the Roman civiliza¬ 
tion was one of progress for Civil Liberty. Cer¬ 
tainly never before, since the Hebrew Common¬ 
wealth fell, Avas the combination of order and good 
government with the development of human free¬ 
dom so distinctly felt to be the public policy of the 
civilized Avmrld as when Rome held dominion over 
tho nations of the great Mediterrjinean Basin and 
along the shores of the Atlanth* Ocean. 

Wherever she came, Rome proclaimed freedom; 
and the [>roclamation Avas not, as the thoughtless or 
tlip])ant might infer, a mockery or a meaningless 
thing. Making all due alloAA'ance for the measures 
Avhich she felt herself com})elled to take in order to 
enforce her oAvn su})remacy, Avhich, although some- 


CONSTITUTIONAL AND CIVIL LIBERTY. 


31 


times perliaps harsh and severe—for all conquest is 
necessarily to some extent harsh and severe—were 
never tainted hy the cruelty which disgraces the 
annals of all preceding nations, not even exce})ting 
Greece, Koine everywhere, and as a general policy, 
allowed and fostered local liberty, and in course of 
time practically extended the benefit of Koman citi¬ 
zenship to all the people of the Koman world. Even 
after the Koman Kepnblic had been converted into 
the Koman Empire hy that greatest of all the as¬ 
sassins of Civil Liberty, Julius Cresar, the Empire 
did not wholly destroy that Liberty. Indeed, 
strange as it may seem, the scope of free institu¬ 
tions was in some respects rather enlarged than cur¬ 
tailed hy the Empire,—a result for which the credit 
is mainly to be given to that most wonderful ele¬ 
ment of human civilization, the noble juris})rudence 
of Rome. Moreover, althongh the Koman Kepnblic 
bad been subverted, and the chief of the army had 
usur])ed the supreme [)ower in tlie State, it is yet a 
fact that no Koman Em[)eror ever sought to govern 
except through the a[)parent instrumentality of the 
ancient re[tublican institutions; and the Senate re¬ 
mained, under the Empire as in the Republic, the 
organ of government for the enactment of laws and 
the re< 2 :ulation of the State. As we might now 
[thrase it, the Emperor was merely the chief execu¬ 
tive officer of the State, while the laws were supposed 
to be made by the Senate. This was, it is true, a 
fiction, or generally so; although there were, in 
fact, occasions during the period of the Empire 
when the Senate actually asserted and made good 
its authority. But even the fiction demonstrated 


32 


HISTORY OF THE DEVELOPMENT OF 


the respect for Civil Liberty imposed upon tlie Em- 
l)erors b}' tlie public sentiment of the time. 

Israel, I’licenicia, Cartilage, Greece, Rome—these 
were the live great nations of the ancient world that 
originated and developed the principles of (hvil 
Liberty in the ancient world, in antagonism alike to 
the arbitrary despotism of the great Oriental mon¬ 
archies and to the essential ])rinciple of monarchy 
itself, and to the lawless savagery of Teutonic, Tar¬ 
tar, Arab, and African barbarism. Tliere was 
civilization in Egypt, in Asshur, in Babylon, in 
Ancient India, in Ancient China: there were lioth 
civilization and Civil Liberty in Israel, Phoenicia, 
Carthage, Greece, and Rome. Elsewhere in the 
ancient world there was neither civilization nor 
civil liberty, nor any possibility of evolving either 
from the general barbarism without extraneous as¬ 
sistance—for never yet has civilization of any kind 
been evolved from barbarism without extraneous 
assistance. What the Latin Poet has said of the 
descent of his liero ^Eneas to the infernal regions 
is greatly more true of the state of intellectual and 
moral degradation consequent upon the lapse of 
man beyond the coniines of civilization : 


Facilis descensus Averni. 

Sed revocare gradiiin, siiperasque evadere ad auras, 

Hie labor, liic opus est. 

It is easy for man to lapse into barbarism. He 
has only to cut himself oil* from intercourse with 
civilized society. It has never yet happened in all 
the liistory of humanity that he has been able to 
retrace his steps and to recover the Civilization 


CONSTITUTIONAL AND CIVIL LIBERTY. 


33 


which he has lost, except through the pursuit of 
him or of his posterity hy that Civilization. By the 
barbarism and the savagery into which he may have 
degenerated he ma}' have gained a certain kind of 
freedom from the restraint which civilized society 
imposes upon him; hut that savage freedom is as 
much akin to true Civil Liberty as the ape is to the 
human being. It is merely a travesty of Civil 
Liberty without the remotest possibility of being 
transformed into it. The essence of barbarism is 
lawlessness; the essence of Civil Liberty is Law. 
How far the two are radically incompatible needs 
no elaboration. Whence we derive our Civil Lib¬ 
erty is, therefore, apparent. 


3 


34 


HISTORY OF THE DEVELOPMENT OF 


LECTURE II. 

A SKETCH OF THE GENERAL DEVELOPMENT OF CIVIL 
LIBERTY IN MODERN TIMES. 

It is a curious fact tliat, separated froiu eacli 
other by intervals of about fifteen centuries each, 
three great events of transcendent importance in 
the history of Civilization stand out prominent l)e- 
youd all others in the annals of time, and these 
three great events are the three cardinal epochs in 
the development of the principles of Civil Liberty. 

About fifteen centuries after the Dispersion of the 
Noachidie from the Plains of Shinar, or, as we 
might perhaps say, after the appearance of Civili¬ 
zation in the lower part of the great Mesopotamian 
Valley, the great movement occurred which is 
known to us as the Exodus of Israel from Egypt, 
which was the first protest, not only of monotheistic 
truth against the corruptions of polytheism, but 
likewise of republican principle against the licen¬ 
tiousness of arbitrary monarchy — a movement 
which, as Ave have seen, eventuated in the estab¬ 
lishment of the first government of law known to 
the records of our race in opposition to the gov¬ 
ernments of the sword which then everywhere 
dominated the world. About fifteen centuries later 
the Divine Teacher of Kazareth preached the Xew 
Dispensation of the Fatherhood of Clod and the 
Brotherhood of Man, and soon that preaching 


CONSTITUTIONAL AND CIVIL LIBERTY. 


35 


revolutionized the world. Again, fifteen centuries 
later still, when Christian truth and Christian faith 
had almost grown faint in their long contest of a 
thousand years with the superstitions of the i^orth- 
ern Odinism, on the one side, and the fiendish fa¬ 
naticism of the false prophet of Arabia, on the 
other; when Gothic Feudalism and Mohammedan 
intolerance unconsciously, yet strangely supple¬ 
menting each other, had almost crushed out Free¬ 
dom from the earth, the hopes of the human race 
were quickened into a new life by the discovery of 
a IN^ew World destined to become the home and the 
stronghold of Civil Liberty. These three great 
events wonderfully supplement each other in the 
divine co-ordination of human history and in the 
development of human civilization. 

With reference to two at least of these three 
grand epochs in the history of mankind, the Exodus 
of Israel from Egypt and the Propagation of the 
Christian Religion, we are apt to forget or to ignore 
their civil aspect, and their influence on the po¬ 
litical civilization of the world in the consideration 
of the transcendent character of their religious pur¬ 
pose. Hot one iota would I assume to detract from 
the momentous importance of that purpose, but the 
peculiarly religious and supernatural character of 
these two great events is not impaired in any man¬ 
ner by a due regard for the great revolution which 
they operated in civil society. And in calling at¬ 
tention to this aspect of these extraordinary trans¬ 
actions in the dealings of God’s Providence with 
our race, I only illustrate the statement which has 
heretofore been made of the one and indivisible 


36 


HISTORY OF THE DEVELOPMENT OF 


character of truth, wliether applied to the iiiaiii- 
festation of religious principle or to the evolution 
of a just and reasoiial)le political economy. 

• The development of political principle from the 
proclamation of the reign of Law from Mount Sinai 
we have briefly sketched. The fifteen centuries of 
the first period wliich Ave have indicated were about 
to terminate, and the time Avas ripe for a neAv reve¬ 
lation that Avas to infuse neAV life into the Great 
Charter of human liberty that had been proclaimed 
u})on Sinai, AA^ien tlie eAul day had come that trans¬ 
formed the Koimin Republic into the Roman Em- 
[>ire. With even a higher and broader scope and 
nobler meaning than liad perAuided the Mosaic In¬ 
stitutions, the Divine R'azarene proclaimed from the 
Mount of Olives and the Hill of Cahuiry the doc¬ 
trine of the Fatherhood of God and the Brother¬ 
hood of Man, the fundamental })rinciple alike of 
Christianity and Civil Liberty. Moses liad pro¬ 
claimed the doctrine of the Fatherhood of God; 
but it was reserved for Jesus of IN'azaretli, the in¬ 
carnate Son of God, to develo}) the doctrine in its 
fulness, and to couple it Avith its co-ordinate doc¬ 
trine and essential conse(pience—that of the Broth¬ 
erhood of Man. 

Ten Commandments are enumerated as having 
been proclaimed through Moses. These ten Avere 
reafiirnied by Jesus, but practically reduced by him 
to tAvo. lie said : 

“ First, Thou shalt love the Lord thy God Avith 
thy Avliole heart, and Avith thy Avhole soul, and Avith 
thy Avhole mind; this is the greatest and the first 
commandment. And the second is like to this : 


CONSTITUTIONAL AND CIVIL LIBERTY. 37 

Thou slialt love thy neighhor as thyself. On these 
two commandments dependeth the whole law.” 

Caste and class and privilege, as is plainly evident 
from this announcement of the Saviour, are abhor¬ 
rent to the spirit of the Cliristian Keligion; caste 
and class and privilege are the deadliest enemies of 
Civil Liberty. The doctrine of the equality of man 
before the civil law must necessarily follow as a 
logical conclusion from the doctrine of the freedom 
and equality of all men before the law of God. It 
is impossible for us to love our neighhor as our¬ 
selves in the sense intended by the Saviour, or in any 
just or proper sense, if we deny to him equal rights 
with ourselves before the municipal law. And so 
it is that in the teachings of the Saviour and in the 
essence of the Christian Religion we find the 
groundwork of our political freedom and of our 
constitutional liberty. 

In the course of three centuries Rome accepted 
the ifew Dispensation and became Christian. The 
republicanism of the old Hebrew Commonwealth 
of Moses and Joshua and Deborah and Gideon, and 
the free spirit of the Christian Church, essayed to 
infuse a new light into the decrepit body of the old 
Roman Civilization, long weighed down with the 
fearful incubus of Caesarism. The Law of Sinai, 
the Law of Calvary and the Laws of the Ten Ta¬ 
bles were combined in a new Cliarter of Civil Lib¬ 
erty. But it was too late for a total rejuvenation 
of the Roman system, and, in the mysterious coun¬ 
cils of Divine Providence, it seems that a cataclys¬ 
mic revolution was required to wash out the old 
order of things with blood, and to usher in a new 


38 


HISTOllY OF THE DEVELOPMENT OF 


European system, with a probationary period of a 
thousand years of struggle and sorrow and suffering. 

Rome fell, and the Roman Civilization went down 
in ruin before the terrific onslaught of the bar¬ 
barous hordes that swarmed over the borders from 
Germany and Scandinavia. Alaric and Attila, Gen- 
seric the Vandal, Hengist and Horsa, Goth, Lom¬ 
bard, Frank, and Burgundian, made sad havoc 
of the Roman world and of its Christian civiliza¬ 
tion. It has been said that the darkest hour in 
the annals of time since the fathers of the human 
race went forth from Ararat was that when the 
barbarians of the Horth hurst through the barriers 
of the Roman Empire, drenched the plains of Gaul 
and Spain and Italy Avith blood, desolated their 
cities, ravaged their homes, covered the Mediterra¬ 
nean Avith their piratical fleets, destroyed the ancient 
marts of commerce, plundered the shrines of art and 
science, annihilated literature, subverted all the 
safeguards of society, and for the civilization of 
Rome substituted the unmitigated barbarity of the 
sword.” And it has been added that “ if aa^c could 
only imagine the massacre of Wyoming on a con¬ 
tinental scale, Ave AAmuld have no more than a true 
picture of Europe Avhen the Roman Empire fell 
before the savage hordes of Germany and Scandi- 
na\da.” 

Writers, aaRo have derived their inspiration from 
the same instincts that animated these bloodthirsty 
savages, have not hesitated to eidarge upon the 
virtues of the barbarians as contrasted Avith the 
supposed degeneracy and corruption of the Roman 
Empire. The falsity of their statements is only 


CONSTITUTIONAL AND CIVIL LIBERTY. 


39 


enhanced by the small element of truth that is con¬ 
tained in them. The rulers of the Western Em¬ 
pire of Rome—for the Eastern Empire withstood 
and repelled the shock under circumstances not 
substantially difterent—were undoubtedly degener¬ 
ate and corrupt, and wholly unfit for the conduct 
of the government which fell into their imbecile 
hands; although there was greatly less of degen¬ 
eracy, corruption and imbecility in the Western 
Empire of Rome at the time of its fall than there 
was in England in the reign of the Stuarts and of 
the first Hanoverians, or in France under the Bour¬ 
bons. There is nothing whatever to show that the 
people of the Roman Empire at the time of its over¬ 
throw were in any way worse, physically, morally, 
or intellectually, than those of the ages that preceded 
them or those of any of the ages subsequent to them 
for a thousand years. On the contrary, there is 
every indication that they were in every way more 
virtuous and more enlightened than either their 
predecessors or their successors for many ages. And 
as for the supposed virtues of the Barbarians in con¬ 
trast with the supposed vices of the Romans, it 
requires the distorted imagination of the most irra¬ 
tional fanaticism to discover their existence. The 
theory of these writers is the truly Oriental theory— 
that temporal calamity is the result of personal 
misconduct, and that, on the other hand, temporal 
prosperity is the logical sequence of virtuous action— 
a theory worthy of the utilitarian school of English 
philosophy, but antagonistic to all revealed religion 
and to all sentiments of honor, honesty and patri¬ 
otism. 


40 


HISTORY OF THE DEVELOPMENT OF 


It is not difficult to find the cause of the over¬ 
throw of the Roman Empire bj the R’orthern Bar¬ 
barians without seeking for the existence of a degree 
of degeneracy and corruption that did not exist. 
Ror is it necessary to find virtue in these Barba¬ 
rians, that is ecpially imaginary, because many, per¬ 
haps the most of us, are descended from them. 
The government of the Western Empire of Rome 
at this time was undoubtedly weak and corrupt, 
greatly more weak than corrupt; and its weakness 
liejmnd question liastened its ruin. All weakness 
in government is detrimental, more detrimental in a 
temporal point of view even than crime; and long 
continued weakness is always fatal. 

Without entering into the controversy over the 
causes of the great catastrophe, this much, at all 
events, is beyond all doulit,—that the Roman Gov¬ 
ernment at this time was a government of law; and 
that the brutal savages, who overthrew it, and who 
held high carnival of blood and carnage amid its 
ruins, had nothing luit the harharism of the sword 
with which to replace it. Their association, previ¬ 
ous to their invasion of the Empire, was that merely 
of bandits and outlaws; their holding of the Em¬ 
pire, after their conquest of it and its disruption 
into fragments, was not much better than the per¬ 
petuation of an organization of robbers. The over¬ 
throw of the Em])ire put liack the cause of Civil¬ 
ization and of Civil Liberty for a thousand years. 
It was the commencement of a hitter and desperate 
struggle which lasted through ten centuries, proh- 
aldy the most desperate and doubtful struggle in 
which civilization was ever involved, the struiTirle 


CONSTITUTIONAL AND CIVIL LIBERTY. 


41 


wliicli characterized all the Middle Ages against 
the savage superstitions of Odinism and the bru¬ 
tality of the Feudal system. 

Feudalism and Odinism dominated Europe for 
thirteen centuries: it cannot be said that they have 
yet entirely ceased to dominate it. Feudalism was 
the organization of society upon a military basis. 
It was the rude expedient adopted by the Barbarian 
Hordes who overthrew the Roman Empire to per¬ 
petuate their conquests. From armies of invasion 
they converted themselves into armies of occupa¬ 
tion. The lands which they had conquered for 
themselves they parcelled out among themselves 
upon military tenures; that is, upon the condition 
of the rendition of military services: and they 
sought to hold the Roman Provinces which they 
had overrun by the brute force of a military organ¬ 
ization. So the Barbarian Generals became kings 
of the countries which they had conquered; their 
principal ofRcers became barons, and counts, and 
marquises, and dukes. These savage chiefs built 
their frowning fortresses on the hills, from which, 
with their retinues of armed ruffians, they over¬ 
awed the surrounding territory and compelled the 
peacefully disposed cities to purchase a precarious 
protection and immunity from plunder by the pa}^- 
ment of a stipulated tribute. Commerce and indus¬ 
try, and the arts of peace, were permitted to he 
carried on only by the payment of tribute to these 
strong-armed feudal ruffians; and as for literature 
and science, they were compelled to take refuge in 
the monasteries, and under the shadow of the resi¬ 
dences of the Christian Bishops, who alone, by rea- 


42 


HISTORY OF THE DEVELOPMENT OF 


son of tlieiT holy calling and their fearless intre¬ 
pidity in the defense of their people, seemed able 
to make any headway against the deadly assaults of 
the Barbarians upon the remnants of the Roman 
Civilization. 

But even the monasteries and the churches, and 
the residences of the priests and bishops, were not 
always safe from assault and pillage by the robber 
barons and their feudal monarchs; and only by the 
combination of the inhabitants of the cities into 
guilds and corporations, and by the maintenance by 
them of a semi-military organization, were such 
liberties as the cities had retained, relics of the 
Roman Civilization, secured against the violence 
and the treachery of tlie feudal chiefs and their 
followers. These Barbarians, and their descendants 
and successors, the feudal classes of Europe during 
the period of the Middle Ages, were as treacherous 
as they were cruel, as unprincipled and faithless as 
they were vicious and violent. A glamour of ro¬ 
mance has been thrown around them by writers, 
who either sympathize with their vices or are igno¬ 
rant of their true character; but any other band 
of robbers would be equally deserving of romantic 
interest, and, in fact, the Ishmaelite ruffians who 
swarmed from Arabia for the conquest of the South, 
and others of a similar character, have equally 
received it. Certainly no worse enemy than 
Feudalism and the Feudal system has ever been 
encountered by the cause of Civilization and Civil 
Liberty. Vassalage and slavery, of course, were 
not unknown before that System; but never before 
it was it sought to organize vassalage and slavery 


CONSTITUTIONAL AND CIVIL LIBERTY. 


43 


on so gigantic a scale as the elementary system of 
human society. 

The victorious Barbarians, who parcelled out the 
provinces of the Koman Empire between them¬ 
selves, generally professed at the time of their con¬ 
quest the bastard form of Christianity known as 
Arianisni, which was exceedingly prevalent at the 
time, and the vicious intolerance of which seems to 
have had the effect of converting all who professed 
it into violent persecutors of Orthodox Christianity. 
But the great majority of them never ceased, in 
fact, to he adherents of the superstitions of Odinism; 
and the influence of that gloomy and bloodthirsty 
creed, if creed it can he called, was perpetuated for 
many a century, even long after their descendants 
had apparently given in their adhesion to the Or¬ 
thodox Church; and probably it would not be in¬ 
correct to say that the influence has been perpetuated 
to this day. 

The ages which supervened upon the overthrow 
of the Boman Empire of the West and of the Ro¬ 
man Civilization by the Northern Barbarians we 
frequently call the Dark Ages; and with a strange 
inconsistency, but only illustrating the fable of the 
wolf and the lamb, the appellation is most fre¬ 
quently given by those writers to whom reference 
has already been made as giving to the. Barbarians 
who caused the darkness a sympathy almost fiend¬ 
ish in its malignity. Dark undoubtedly those ages 
were with the infamies of the Feudal System, witli 
the brigandage of the lawless barons and the mili¬ 
tary cut-throats who kept the people in turmoil, 
with Lombard violence, Souabian insolence. Carlo- 


44 


HISTORY OF THE DEVELOPMENT OF 


vingian and Capetian licentiousness, and the ruffian¬ 
ism, for we cannot call it by any more appropriate 
name, of Norman and Plantagenet Kings. It was 
with this darkness and with its dark deeds of vio¬ 
lence that the Koman Civilization was compelled to 
contend through ten centuries, in order to recover 
its lost vantage-ground and to gain the light again. 
Even from the very beginning that Civilization en¬ 
tered upon the long struggle, and sought to bring 
under its influence some of the Barbarian leaders 
themselves. Among these were Theodoric the Os¬ 
trogoth and Clovis the Frank, whose native talents 
enabled them to some extent to rise above their 
barbaric surroundings and to appreciate the value 
of the civilization which they liad contributed to 
subvert. But their efforts to raise themselves and 
their followers to the level of that Civilization were 
not crowned with any extraordinary success; and 
the long night of the Northern Barbarism brooded 
over Europe, with but few faint stars to illumine it, 
for at least seven centuries. One grand heroic fig¬ 
ure, a man of transcendent genius, one of the few 
whose great personality has moulded history, sought 
with some measure of success to bring order out of 
the chaos and to diffuse the radiance of the Roman 
Civilization over the Northern darkness—Imperial 
Charlemagne. But even the unrivalled genius of 
Charlemagne was unable to effect the desired re¬ 
sult. The advantage gained by him was lost under 
his feeble successors. And it may he said that the 
contest went on for seven hundred years after him 
before the spirit of Feudalism yielded to the spirit 
of Civilization; before the Freedom, born upon the 


CONSTITUTIONAL AND CIVIL LIBERTY. 


45 


Palestinian Highlands and nurtured on the hills of 
Greece and Rome, was enabled, with her lamp of 
truth and justice, to let in the light of a better day 
upon the darkness begotten of the northern Odin- 
ism. 

The lamp had been kept burning in the temples 
of Christianity; in the schools which Christian 
bishops had maintained within their cities; in the 
monasteries to which the Romanic population 
docked in great numbers, and which they erected 
into veritable fortresses of education and civilization 
in antagonism to the castles of Feudalism; at last 
in the great Universities, which became semi-inde¬ 
pendent republics, with their own free institutions 
and their own self-made laws, and their own auton¬ 
omy; and all the time in the cities which dated 
their existence back to the old Roman times, in 
which the principles of freedom had been sedu¬ 
lously perpetuated, and which had succeeded in 
maintaining many substantial privileges, if not 
always their independence, against the persistent 
attacks of the feudal barons and the feudal mon- 
archs. From Rome itself the old free spirit had 
never wholly perished; and especially after it had 
been relieved of the presence of the Emperors by 
the transfer of the seat of Government to Ravenna, 
it infused new life into the Senate, which had never 
wholly abandoned its functions or its organization; 
and soon the spirit of liberty in the Italian Penin¬ 
sula, aided by the potent influence of the Roman 
Pontiff, which was always exerted on the side of 
freedom, proved strong enough at last to roll back 
the tide of the Northern Barbarism. 


46 


HISTORY OF THE DEVELOPMENT OF 


The birth of modern Civil Liberty was in Italy. 
First, Venice lit her lamp at the Roman shrine of 
freedom ; and to her credit he it said, Venice never 
received a feudal lord within her island walls. She 
was the first of the Italian Cities to assert her inde¬ 
pendence, and the last to maintain it unimpaired. 
First in commerce in the modern days, as Tyre and 
Carthage were in the ancient times, she has received 
from modern publicists the praise which Aristotle 
gave to her ancient prototypes, of excellence of po¬ 
litical institutions. We are disposed to remember 
most some odious features of those institutions and 
some of her social crimes against individual right; 
hut in the light of her eminent services to Civilization 
and to Civil Liberty, including therein her long 
contest with those foes of humanity, the Turks, 
these crimes cannot be permitted to weigh in the 
balance against her. She was the foremost cham¬ 
pion of freedom when the Anglo-Saxon savages 
from North Germany were engaged in the con¬ 
genial work of uprooting and destroying civilization 
from the face of Britain; and she did not perish 
from among the nations until in our own America 
we had permanently established the principles of 
freedom for which she had contended for upwards 
of fifteen hundred years with Teutonic Feudalism, 
on the one side, and the infamy of Mohammed¬ 
anism, on the other. What the cause of Civil Lib¬ 
erty owes to Venice has never yet been sufficiently 
estimated. 

Bologna, Florence, Pisa, Amalfi, Genoa, Milan, 
followed the example of Venice. All the Lombard 
Cities, so-called, became alive with the spirit of free- 


CONSTITUTIONAL AND CIVIL LIBERTY. 


47 


dom. All the Cities of Tuscany, of the Romagna, 
and of Central and Southern Italy, rose in rebellion 
against the Feudalism imposed upon the Peninsula 
hy its Teutonic invaders, and sought to he main¬ 
tained there hy the German Emperors ; and if they 
did not succeed in wholly destroying the institution 
and extirpating the robber brood, they succeeded at 
all events in confining it and them within bounds. 
The Italian Republics revived the glory of Greece 
and Rome. They combined the maritime enter¬ 
prise of republican Phoenicia with the sturdy pa¬ 
triotism of republican Palestine. They had not 
only the descendants of the Goths and Vandals and 
Lombards within their own borders to contend 
with; they had likewise repeatedly to withstand 
new invasions of R'orthern Barbarism, ambitious 
enterprises of French and German monarchs, and 
R^orman adventurers. And yet they succeeded in 
maintaining their liberties, and maintaining at the 
same time the cause of humanity and of civiliza¬ 
tion, against all their enemies and all the foes of 
freedom. 

It is very true that these Republics were often 
torn by intestine strife and convulsed by civil war, 
that they were disturbed by contests of Guelphs 
and Ghibellines, and that their annals are stained 
by dark deeds of blood and cruelty. But those 
deeds of blood and cruelty and all the contest and 
the strife of the Italian Republics sink into insig¬ 
nificance when they are contrasted with the out¬ 
rages and the atrocities of the contemporaneous 
Feudalism. And moreover, most of the dark deeds 
and most of the crimes that are charged to the ac- 


48 


HISTORY OF THE DEVELOPMENT OF 


count of the Italian Eepublics were in fact the 
work of the feudal bandits who had survived in 
their midst, the Colunas, Orsinis, Estes, La Scalas, 
Yiscontis, and Shorzas, all of them descendants of 
the N^orthern Barbarians and not of the old and 
true Italian stock, to which was due the resurrec¬ 
tion of the spirit of liberty. 

Credit is given to the Italian Republics, which 
they amply deserve, for the renaissance in modern 
times of art and science and literature, which may 
be said to be due to them alone; due credit has not 
been given to them for that great free spirit which 
became potent enough to crush Feudalism in the 
Italian Peninsula; to beat back the Grerman Impe¬ 
rialism beyond the Alps; to react upon the great 
feudal monarchies of Germany, France and Spain; 
to invade Avitli their influence the Swiss Cantons 
and the great Cities of the Rhine, where the old 
Romanized population, whether of Gallic or Teu¬ 
tonic origin, had retained some traces of the old 
Roman system in their municipal institutions; to 
excite a spirit of emulation and generous rivalry 
even among the purely Teutonic Cities of the Ger¬ 
man Ocean and the Baltic Sea, which constituted 
the famous Hanseatic League; and finally to reach 
the shores of England, where the Lombard mer¬ 
chants settled in London contributed greatly to lib¬ 
eralize the institutions and the public sentiment of 
the English Metropolis. From Italy and the Italian 
Republics, beyond all reasonable doubt or question, 
emanated the influences which, in the interest of 
Civil Liberty, reacted upon the regions of the 
Centre and North of Europe. It is easy to trace 


CONSTITUTIONAL AND CIVIL LIBERTY. 


49 


the path which Freedom took; it was the path of 
Commerce. First crossing the Alps into Switzer¬ 
land, the ancient Helvetia, once an integral part of 
the Roman Empire and where the Roman inlinence 
may well be supposed to have survived, it renewed 
in the hardy mountaineers of that country the spirit 
of freedom, which, however, did not tind occasion 
for its assertion in positive action before the begin¬ 
ning of the fourteenth century, when such action 
had already been had in countries farther to the 
north. Rext it influenced the cities of the Rhine, 
where also the Roman influence had always been 
dominant, and where, if there was feudal rule, it 
was that of ecclesiastical rulers, such as the Arch¬ 
bishop of Mayence and the Elector Archbishop of 
Cologne, who necessarily subordinated the feudal 
to the Roman institutions, and consequently re¬ 
moved the occasion of conflict between the people 
and the Feudal System—although that conflict on 
occasions became sharp enough when the “ robber 
barons,” as they were then justly called, leagued 
themselves to depredate upon the commerce that 
was carried on along and upon the famous river. 
But in the Cities of Flanders and the Netherlands, 
in Antwerp, Ghent, Bruges and Utrecht, the Italian 
influence was most marked, and the spirit of liberty 
became most dominant. Most strongly outside of 
Italy the opposition to the Feudal System and to 
Feudal ideas asserted itself in those Cities of the 
Roman borderland whicli had been established as 
bulwarks of the Roman Civilization in Gaul against 
the encroachments of the Teutonic Barbarians to 
the North and East of the regions of the Lower 
4 


50 


HISTORY OF THE DEVELOPMENT OF 


Rhine. And thus we tind in the path which com¬ 
merce took in tliose days, and along the line of the 
great frontier river between France and Germany, 
dotted with tlie cities that had originated as Roman 
colonies, the principles of Civil Liberty were prop¬ 
agated anew from Italy. 

TAobably the strangest feature in the revival of 
free institutions in mediawal Europe was the estab¬ 
lishment in the very heart of Teutonism, along the 
shores of the Baltic Sea and the German Ocean, 
of the hinious confederation of republican cities 
known as the Hanseatic League, or the League of 
the Ilanse Towns, and the establishment for a time 
of rei>ul)lican institutions in that Ultima Thule of 
the Greeks and Romans, Iceland. The Hanseatic 
League, as we know, was a confederation of the 
commercial cities of the nortliern seas, comprising 
at one time some sixty or seventy different munici¬ 
palities, and including Hamburg, Bremen, Lubeck, 
Dantzic, Wisby, and even distant Novgorod, in the 
heart of Russia, all i)ractically inde})endent of the 
great surrounding feudal monarchies, and all with 
civil institutions based upon those in existence in 
tlie Italian Cities. How comes it that we tind these 
republican municipalities in the far Hortli in the 
very ages during which Feudalism was supreme in 
all the surrounding nations ? How comes it that 
we tind republican institutions in full force and 
vigor among the kindred of the ruffian barbarians 
who lield the greater i)art of Europe at the time, 
and for many centuries afterwards, in the thraldom 
of the worst system of social slavery that was ever 
devised ? It seems rather difficult to account for 


CONSTITUTIONAL AND CIVIL LIBERTY. 


51 


the foothold which republican institutions and the 
principles of Civil Liberty acquired at this time in 
the Cities that comprised the Hanseatic League. 
But one fact in regard to it is well settled and fully 
admitted by all writers on the subject; and that is, 
that the influences which led to this anomalous con¬ 
dition had emanated from Italy, and that the repub¬ 
lican institutions of the Hanse Towns were the 
direct result of the republican spirit then triumph¬ 
ant in the Italian Peninsula. The visits of Italian 
merchants and Italian trading vessels to the Horth 
Sea and the Baltic are well known, and the spirit 
of freedom and the spirit of commerce alike were 
fostered by the intercommunication of ideas be¬ 
tween the merchants of Italy and the mercantile 
communities of the Horth. In fact, it would seem 
as if opportunity had been afforded for the revival 
of freedom in the Horth by the unloading of its 
turbulent superfluous population upon Central and 
Southern Europe. And, indeed, there is some 
reason to suspect that this turbulent population, 
which was precipitated upon the Koman Empire 
and submerged it, was not itself indigenous to the 
regions along the Baltic, from which it is generally 
assumed to have proceeded, hut may have been 
intruders and conquerors there before they had 
occasion to become conquerors of the provinces of 
the Homan Empire. 

However this may he, the curious spectacle is 
presented that, in the lands from which the brigands 
and bandits are stated to have proceeded who 
sought to fasten upon all Europe the yoke of the 
most brutal slavery the world has ever known. 


52 


HISTORY OF THE DEVELOPMENT OF 


there arose, during the very ages in which that 
slavery was most galling, a galaxy of petty repub¬ 
lics, not unworthy to be enumerated by the side of 
the famous Italian Republics of the time as staunch 
upholders of the cause of Civilization and Civil 
Liberty. And it is a curious fact, too, that although 
the Hanseatic League was comparatively short-lived, 
and many of its members succumbed, in course of 
time, to the assaults of the feudal monarchies by 
which they were surrounded, some four of the cele¬ 
brated Cities which composed it, Hamburg, Bre¬ 
men, Luheck and Hantzic, survived as independent 
republican municipalities down to the present cen¬ 
tury, Hantzic having finally lost its independence 
in the course of the Napoleonic Wars, and Ham¬ 
burg, Bremen and Luheck having yielded their re¬ 
publican independence even yet more recently to 
the coercion of Otto von Bismarck. 

Thus, to the Italian Republics in the South and 
the Hanseatic League in the North, but primarily 
and chiefly to the Italian Republics, is due the con¬ 
servation of the principles of civil liberty through 
the Middle Ages; and, with the principles of civil 
liberty, all that survived of the ancient Roman civili¬ 
zation. But even in the great feudal monarchies 
themselves the cities did not surrender their ancient 
liberties and privileges without a struggle. But 
into the details of this struggle it would serve no 
useful purpose here to enter, even if we had the 
time to do so. Suffice it to say that even amid the 
despotic feudalism of England, one of the most 
tyrannical in all Europe, the City of London, in¬ 
fluenced in that regard by the Cities of Flanders 


CONSTITUTIONAL AND CIVIL LIBERTY. 


53 


and the Italian Republics, had much to do with the 
conservation of such remnants of the ancient Roman 
freedom as survived in England under the Anglo- 
Saxon rudeness and the Horman domination. But 
not much survived in England, and the island king¬ 
dom had little or no part in the great contest against 
Feudalism. It awoke to the realization of the 
blessings of civil liberty at a comparatively recent 
period, when the brunt of the struggle had long 
been borne by others. What part England has 
played in the great contest we will have occasion 
to notice hereafter more fully and in greater detail. 

It may be proper at this point to advert to the 
influence of certain occurrences and institutions of 
the Middle Ages upon the contest between Civil 
Liberty and Feudalism. In this connection three 
things above all others are deserving of notice. 
These are the Crusades, the establishment of the 
monastic institutions, and the contest of the Popes 
with the feudal powers of Europe, each and all of 
which had a remarkable bearing upon the great 
struggle which we have endeavored to sketch. 

The overthrow of the Roman Empire by the 
Barbarians, and the establishment of their petty 
feudal despotisms and their feudal system in its 
place, not only menaced the existence of civiliza¬ 
tion and threatened the extermination of Civil 
Liberty, but, contrary perhaps to Avhat might be 
supposed by casual and superficial observers, intro¬ 
duced an element of weakness into the European 
social system which tended to make it an easy prey 
to other enemies. It might be supposed that the 
military prowess and courage attributed to the vie- 


54 


HISTORY OF THE DEVELOPMENT OF 


torioHS Barl)arians would have contributed, at least, 
to strengthen Europe externally, and to have made 
the dismembered provinces of the Empire more 
potent witliin themselves. Tlie contrary was the 
result, and necessarily the logical result, of the in¬ 
cursions of the Barbarians; for the accession of a 
horde of l)andits and brigands can give no real 
strength of any kind to the forces of civilization. 
It maybe a potent cause of turmoil lasting through 
ages, as it was in this case; but it infused no 
strength or vigor into the body politic. It resulted 
in no vigorous administration of the atfairs of gov¬ 
ernment; and it seems to have been powerless 
against external enemies. 

Apart from the powerful empire built up by the 
three great Carlovingians, diaries Martel, Pepin, 
and Charlemagne, short-lived as it was in one sense, 
although it was not without its influence in after 
ages, the feudal monarchies established by the 
northern Barbarians upon the rains of the Roman 
Empire were as weak and imbecile as they were 
characterized by violence and turbulence. They 
were unable to stand against the eftbrts of the East¬ 
ern or Byzantine Empire, as soon as that Empire 
in competent hands resolved to cope with them. 
And so the kingdom established h}’ the Vandals in 
Africa collapsed in a single campaign conducted by 
the great Belisarius ; and the kingdom of tlie Ostro¬ 
goths in Italy yielded to the same able commander 
with no very much greater difliculty. So, also, 
when the Saracens had overrun Africa and under¬ 
took to cross over into Spain, the Visigothic mon¬ 
archy in the latter country was overthrown by the 


CONSTITUTIONAL AND CIVIL LIBERTY. 


55 


Tslnnaelites in a sino^le battle. The Northern Bar- 
barians were potent for mischief; they conld pull 
down the stately edifice of civilization, and bnild 
their own rude lints among the ruins; bnt the 
social system and tlie feudal monarchies established 
by them were impotent for good, and were wholly 
incapable of insuring respect abroad or tlie social 
order at home. 

Once, and once only, under the inflnence of the 
Jfoman Pontiffs, the feudal powers of the Middle 
Ages entered upon a great enterprise that promised 
well for tlie cause of hnnianity, linnian civilization, 
and linnian right. I refer to the Crusades, those 
remarkable movements in wliicli the powers of 
Europe sought to stem the torrent of Moslem ag¬ 
gression that threatened for a time to overwhelm 
Europe, with all its Aryan and Cliristian civiliza¬ 
tion. The Crusades, notwithstanding what has 
been said of them by those writers wliose sympa¬ 
thies are antagonistic to everything that is meant 
by Christianity, were conceived in the highest spirit 
of wisdom ; and if they failed to accomplish all that 
they should have accomplished, it was because the 
Feudal System and the Teutonic organization of 
society at the time were unequal to the great task. 
Two men alone, Godfrey of Bouillon, the heroic 
leader of the First Crusade, and Louis IX. of 
France, the equally heroic leader of the Seventh 
and Last Crusade, seem to have had any adequate 
idea of the great enterprise, or to have risen to tlie 
level of the great occasion. But even they were 
unable, with the limited means placed at their dis¬ 
posal by the Feudal System, to accomplish more 


56 


HISTORY OF THE DEVELOPMENT OF 


than the mere temporary arrest of the Oriental 
invasion. The ^reat s^ood which the Crusades ac- 
complished, apart from this temporary stay of 
Orientalism, was in paving the way for the gradual 
destruction of the Feudal System by the destruction 
of the feudal nobles and by demonstrating its utter 
inefficiency. The European towns and cities in¬ 
creased in importance and augmented their rights 
and privileges by the concessions which they ex¬ 
torted from the feudal nobles as the condition of 
aiding them in fitting out their expeditions for the 
East; and, of course, every gain by the towns and 
cities under these circumstances was a distinct and 
positive gain for civilization and civil liberty. 

In the second place, the establishment of the 
monastic institutions contributed wonderfully to the 
advancement of the cause of human right and 
human enlightenment. In view of the statements of 
many writers, loud in their denunciations of monas- 
ticism and of everything a})pertaining thereto, this 
assertion may seem paradoxical, and yet it requires 
no more than the most superficial examination to 
show the entire truth of the assertion. 

The monasteries were the refuge of the Latin or 
Komanized populations of the Roman Provinces 
that had been overrun by the Barbarians. In them 
was kept alive whatever of learning, art and science 
had escaped the sword or the torch of tlie Northern 
ruffians. In them was the art of writing perpetuated 
and the literary treasures of antiquity conserved by 
the patient labor of transcription. They constituted 
fortresses against the attacks of the robber barons 
and their bandit hordes, and their moral infiuence 


CONSTITUTIONAL AND CIVIL LIBERTY. 


57 


operated to some extent as a restraint upon the 
rapacity and violence of the feudal nobles and their 
retainers. The beneficial influence of all this upon 
the cause of civilization must be patent to all ex¬ 
cept those who read history with a distorted eye, or 
whose mental obliquity is such that to them evil is 
good and good is evil. And there are, unfortu¬ 
nately, too many whose creed in this regard is the 
creed of malignity. 

But independently of all this, there is another con¬ 
sideration even more directly in point, and yet which 
has been in great part ignored even by those who 
are willing to do justice to the great services ren¬ 
dered to humanity by the monastic institutions of 
the Middle Ages. It is that these institutions were 
organized under written constitutions, and that for 
the conduct of their affairs they adopted the repre¬ 
sentative and elective system of government. It is 
a fact beyond all doubt and beyond all question, 
that the first distinct and positive illustration of 
constitutional government is to be found in the 
monastic orders. The very word Constitution^ in the 
technical sense in which we now use it, was first so 
employed by them; and Constitutionalism in gov¬ 
ernment may in fact be said to have originated with 
them. The Constitutions of Saint Anthony, and 
Saint Augustine, and Saint Francis of Assisi, and 
Saint Dominic, and subsequently the Constitutions 
of Saint Ignatius of Loyola, Saint Francis De Sales, 
and others, were the first schemes on record of 
strictly constitutional government, as we now under¬ 
stand that term; and it is likewise a fact, although 
the fact seems to be but little known, or has been 


58 


HISTORY OF THE DEVELOPMENT OF 


but rarely mentioned, that this circumstance was 
frequently the subject of consideration, informally 
at least, in the Convention which formulated our 
own Federal Constitution. And not only did these 
monastic bodies live under constitutional govern¬ 
ment radically antagonistic to the arbitrary and 
brutal military despotisms of the Feudal System, 
but their organization, also, as we have stated, em¬ 
braced the elective and representative idea in the 
management of their affairs. Their principal offi¬ 
cers were all elective, as they actually remain to 
this day; and their important affairs were transacted 
through General Conferences or Congresses com¬ 
posed of delegates from the different houses of the 
respective Orders, and elected by those houses by 
the means of general suffrage. There was abso¬ 
lutely nothing wanting to assimilate their theory of 
governmental organization to our own Constitu¬ 
tional system in force with us this day. How the 
practical enforcement of such theories must have 
militated against the ideas upon which Feudalism 
was based, and the purposes for which that infamous 
system was instituted, needs no elaboration to make 
it clear. 

In the third place, and perhaps most potently of 
all, the long continued and constantly recurring 
contests between the Roman Pontiffs, on the one 
side, and the feudal nobles and the feudal rnon- 
archs, on the other, running through all the Middle 
Ages and down even to the beginning of the present 
century, contributed greatly to the advancement of 
the cause of civilization and Civil Liberty. This 
statement, also, is controverted by the writers to 


CONSTITUTIONAL AND CIVIL LIBERTY. 


59 


whom I have already more than once referred; and 
nowhere, perhaps, more than in this connection has 
tlieir bitterness been exhibited; and it is strange 
how utterly unjustifiable is their system of misrep¬ 
resentation in this regard. 

To trace with minuteness the contest between the 
Popes and the German Emperors over the subject 
of investitures, as they are called, or between the 
Popes and the Kings of France over the subject of 
the sanctity of the marriage relation, or between 
the Popes and the Kings of England for the free¬ 
dom of the Church in that country, or between the 
Popes and Kings and Kobles everywhere through¬ 
out feudal Europe to restrain violence and lawless¬ 
ness,—contests, Avith which the history of the Mid¬ 
dle Ages is full to overfiowing,—would require 
more space than Ave could well devote to the sub¬ 
ject here, even if we had the desire to enter upon 
it. Sutfice it to say that, in that history, and from 
the very beginning of the period doAvn to its latest 
day, we find mention and continued evidence of an 
apparently irrepressil)le conflict hetAveen Church 
and State in Europe, hetAveen the Ecclesiastical and 
the Civil authority. We assert AAdthout hesitation, 
and AAdthout fear of successful contradiction, that 
the conflict at all times and under all circumstances 
was one betAveen Civil Liberty and the forces of 
Civilization, on the one side, and feudal despotism 
and laAvless brute force, on the other. We do not 
mean to he understood as claiming by this state¬ 
ment that the representatives of CiAulization in this 
conflict Avere ahvays right in the course pursued by 
them, and that the supporters of the feudal despot- 


60 


HISTORY OF THE DEVELOPMENT OF 


ism were always wrong. There were undoubtedly 
excesses on both sides. But undoubtedly, if ever 
there was a case where excess was justifiable, it was 
in this war to the death between brutal tyranny and 
the cause of human liberty and civilization. And, 
again, we assert that the cause then represented by 
what we may call Ecclesiasticism was the cause of 
the people against the hereditary ruffians who 
would have perpetuated over them the tyranny of 
the sword. 

The establishment of the Feudal System in 
Europe by the ^N’orthern Barbarians and their de¬ 
scendants drew a sharp line of distinction between 
the Feudalists and the great mass of the people. 
The former comprised the Teutonic conquerors of 
the Boman Empire, of whom the chiefs, as we have 
stated, became dukes, and counts, and barons, the 
so-called nobility of Europe; and their followers and 
armed retainers, according to their respective 
grades, became knights and soldiers, and some even 
sank to the grade of serfs and menials. The latter, 
the people, of manifold origin, British, Gallic, 
Spanish, and Italian, and partly even Teutonic, 
were the descendants of what may be called the old 
Latin or Bomanized inhabitants of Southern and 
Western Europe, and comprised the mass of the 
population of the Cities where they especially in¬ 
trenched themselves and made a more or less suc¬ 
cessful resistance to the conquering Barbarians. 
They generally became tributary to the feudal 
chiefs, in most cases to the monarch alone; but ex¬ 
acted as the condition of their submission a due 
regard to their municipal rights and liberties de- 


CONSTITUTIONAL AND CIVIL LIBERTY. 


61 


rived to them from the Roman Empire. The 
feudal nobles and their retainers devoted them¬ 
selves to war and violence as their normal occupa¬ 
tion ; and when they were not so engaged, the only 
arts of peace which occupied them were the chase, 
the joust, and the tournament. Art and science 
and literature had no charm for these Barbarians; 
and in all the ten centuries from the end of the 
Fifth to the end of the Fifteenth Century not one 
of their race became eminent in any of the branches 
that go to make up the cultivation of our civilized 
life. Charlemagne, Godfrey of Bouillon, Louis IX. 
of France, and a few others may he named, who 
became distinguished for statesmanship or for he¬ 
roic conduct; hut with the exception of Thibaut 
of Champagne, who cultivated music and poetry, 
and some few chroniclers, who are not certain to 
have belonged to the feudal classes, literature owes 
nothing to these men. Whatever of art or science 
or literature there was in the Middle Ages was the 
product of the people of Latin origin as distin¬ 
guished from the feudal classes. To these last it 
may be truly said that Civilization owes nothing but 
their persistent war upon it. 

The struggle between Civilization and Feudalism 
went on unintermittingly through the ages. At last 
the period of trial and probation was drawing to a 
close, and it was not even then cpiite apparent 
whether Feudalism or Freedom was to triumph. 
Indeed, at the end of the long night of barbarism, 
the outlook for Freedom seemed to be most gloomy. 
Free Switzerland had arisen, it is true; but the re¬ 
publican cities of Italy, as well as those of the Han- 


62 


HISTORY OF THE DEVELOPMENT OF 


seatic League, had sutfered many severe losses in 
the eontest. The spirit of Freedom seemed to lie 
growing faiut; the spirit of Odinisni apparently was 
gaining renewed strength, ft was not very long, 
in faet, before the latter, taking possession of a vio¬ 
lent revolutionary movement in religion, broke 
forth into such a factiousness of tierce intolerance 
as to set the cause of Civil Liberty in Europe hack 
for three centuries more. 

At the same time, that most accursed enemy of 
Civilization, the diated Moslem, was perniciously 
active in the East. The Turks, in a.d. 1452, had 
overthrown the last remnant of the Byzantine or 
Eastern lioman Empire, had captured Constanti¬ 
nople, planted their banners on the dome of Santa 
Sophia, and advanced their conquests to the shores 
of the Adriatic, and almost in sight of Venice and 
of Italy. The great bulwark which the Byzantine 
Em})ire had presented for over seven hundred years 
against the surge of Moslem invasion of Europe was 
ruthlessly swept away, and the Turk was advancing 
into the very heart of Europe. 

In truth, the darkest hour was the hour before 
dawn. But the dawn came at last. The second 
period of tifteen hundred years was drawing to a 
close. The third period was ushered in with the 
most heroic enterprise in all the annals of time. 
Braver in all the elements of moral heroism than 
was Leonidas at the Pass of Thermopylae when he 
Avithstood without hope of succor the swarming 
myriads of Persia’s King, braver than Curtins when 
he leaped into the yawning gulf to save Borne, 
was that heaven-ins])ired republican navigator, the 


CONSTITUTIONAL AND CIVIL LIBERTY. 


63 


‘‘ world-seeking Genoese,” who, on the third of Au¬ 
gust, A.D. 1492, sailed westward upon that mem¬ 
orable voyage into unknown seas that never had 
parallel before or since; who, week after week and 
month after month, in the greatest quest ever yet 
undertaken by man, sailed westward through that 
pathless and mysterious ocean, and even while the 
fearful storm of mutiny was rising around him, 
with no human aid nigh, and no hope hut in God 
alone and his own great heart, effected that re¬ 
markable voyage, the story of Avhich thrills us even 
yet, for the discovery of the l^ew World. It was 
not unlike that other great voyage when the saving 
Ark bore the chosen few from the accursed shores 
of the primeval world across the diluvian waters to 
a regenerated earth. On the “ Santa ^laria,” al¬ 
though the great Admiral himself knew it not, at 
least to its full extent, were borne Humanity’s 
hopes of Civil Liberty and the fortunes of millions 
yet unborn, not merely in the Hew World that was 
to be, but equally in the Old World, whose aspira¬ 
tions depended for their fruition on the influences 
that were to emanate from that Hew World. For 
it is an undoubted fact that the successful enterprise 
of Christopher Columbus gave to Freedom a home 
in the Hew World which was denied to it in the 
Old, or whereof its holding had become precarious, 
and that from the Hew World the spirit of Free¬ 
dom reacted upon the Old in such manner as finally 
to break the fetters that otherwise might never have 
been broken. To the influence, direct and indirect, 
of America is due beyond all question the revival of 
the spirit of Freedom in Europe, and the establish- 


64 


HISTORY OF THE DEVELOPMENT OF 


ment there of constitutional government. Without 
the opening up of the New World by Columbus, 
and the room therein given to Freedom to grow in 
the virgin forests undisturbed and far removed from 
the deadly blight of Feudalism, it is exceedingly 
doubtful from our human standpoint whether Feu¬ 
dalism or Freedom would finally have triumphed 
on the Eastern Continent. Indeed, the probabilities 
seemed to he all in favor of Feudalism, Imperialism 
and Absolutism, and, in fact, for two centuries after 
the discovery of America and until the result of the 
establishment of free institutions upon our conti¬ 
nent had opportunity for reaction upon Europe, 
there was less of Freedom on the Eastern Conti¬ 
nent than at any time during the whole period of 
the Middle Ages. With the exception of Venice, 
and to a certain extent of Genoa and Switzerland, 
all Europe had sunk beneath the sway of absolute 
monarchy. Feudalism, it is true, had been shorn 
of some of its lawlessness, hut none of its brutality, 
and the merging of Feudalism into Imperialism 
cannot be said to have greatly aided the advance¬ 
ment of the cause of Civil Liberty, except in so far 
as it substituted one single-headed despotism for 
the hydra-headed monstrosity of ten thousand petty 
tyrants. 

The result of the reaction of America upon Eu¬ 
rope it will he our province to sketch hereafter. It 
will he suflicient to state here that the reaction 
seems to be radical and permanent; that Feudal¬ 
ism and Imperialism through all the civilized world 
are dead or dying, and are only awaiting decent 
burial, and that the spirit of Civil Liberty is every- 


CONSTITUTIONAL AND CIVIL LIBERTY. 


65 


where domiiuint, even if nut yet everywhere entirely 
triumphant. 

But there is a chapter in the history of the great 
contest to which we have scarcely referred, and yet 
which intimately concerns us—the part which Eng¬ 
land has borne in the struggle for Civil Liberty. 


66^^ HISTORY OF THE DEVELOPMENT OF 


LECTURE III. 

THE DEVELOPMENT OF CIVIL LIBERTY IN ENGLAND. 

What part Iris England l^orne in tlie great contest 
of the ages for Civilization and Civil Liberty ? Not as 
brilliant a one as her writers wonld have ns believe. 
If we conld give credit to tbein, we wonld conclude 
that Civilization and Civil Liberty were both indig¬ 
enous to the Island of Britiaii, and yet, with a 
strange inconsistency, that both originated among 
the Anglo-Saxon savages of North Germany; and 
that Greece and Home and Palestine and Plujenicia 
not oidy exercised no inlluence on Anglo-Saxon civ¬ 
ilization, but in fact scarcely existed, so far as that 
Civilization was concerned. Very many persons in 
our own country, either as the result of limited 
information, or controlled by the autbority of writers 
and speakers whose sole purpose it seems to lie to 
glorify the Anglo-Saxon race at the expense of all 
other races, have yielded assent to the theory of the 
evolution of our so-called Anglo-Saxon institutions, 
therein including what they are pleased to call 
Anglo-Saxon Civil Liberty, from the rude customs 
and usages of the barbarians who flocked to the 
Fsland of Britain from the fens of Friesland and the 
forests of Jutland. 

Now, it is no more to the discredit of our present 
Anglo-Saxon or Anglo-American race that the 
Angles and Saxons, and other barbarians who came 
with them to plunder Britain in the liftli and sixth 


CONSTITUTIONAL AND CIVIL LIBERTY. 


67 


centuries of t]ie Cliristiaii Era, were the most cruel, 
the most hloodthirsty, and the most thoroughlj 
savage of all the savages who coutrihuted to dis- 
memher the Roman Empire or to destroy the Roman 
civilization—that their institutions were utterly 
unworthy to be designated as civil institutions, being 
those merely of the rudest savages—that there was 
no element of civilization or civil liberty possible to 
he evolved from such institutions—than it was to 
the discredit of the Romans, at the time of their 
greatest development, that they were confes¬ 
sedly, and by the honest admissions of all their 
own historians, tlie descendants of an aggregation 
of cut-throats, robbers, bandits, thieves and outlaws. 
A great race may spring from the most contemp¬ 
tible origin. It is not necessary to outrage the truth 
of history in order to justify the present eminence 
of the Anglo-Saxon race, if it be |)roper so to call it, 
in the affairs of the world. The Anglo-Saxon race 
did little or notliing for the cause of Civdl Liberty 
until the Seventeenth (Tmtury.* It is not neces¬ 
sary to enhance what it has done since, which 


* The assumption that Civil Liberty has always been the heri¬ 
tage of the inliabitants of England has not even the merit of being 
the outburst of exaggerated patriotism. It is simply the result of 
deliberate falsehood and insular bigotry, not unlike the bigotry 
and ignorance of the Chinese map-maker, who represents the 
world Avith the Chinese Empire in the centre, and merely desig¬ 
nates the other nations by small dots upon the margin. The 
assumption is on a par Avith the cognate pretense of a derivation 
of their peculiar and special brancli of the Christian Keligion, not 
from the Apostles of the vSaviour, but from his companions, and 
mainly from Joseph of Arimathea, who is supposed to have brought 
it to them in some mysterious Avay without transmission through 
Eome or taint or contact Avith the intervening Eoman Empire. 





68 


HISTORY OF THE DEVELOPMENT OF 


is ample enough, by gross misrepresentations 
of what it did, or failed to do, before. Cer¬ 
tainly it is not necessary to trace out Anglo- 
Saxon Civil Liberty, as we are sometimes pleased 
to call it, or any of the civil institutions by 
which we claim that Civil Liberty to be sub¬ 
served, from the rude usages and savage customs 
of the barbarians of ^I’orth Germany and Scandina¬ 
via. The freebooters who came with llengist and 
Horsa to the conquest and plunder of Britain did 
not materially differ in their usages and customs 
from the other barbarian or savage races of the 
world, the American Indians, the wild tribes of 
Arabia, or the wandering hordes of the Mongolian 
Deserts. These savages and barbarians all boast of 
the possession of a certain freedom; but assuredly 
this barbarous freedom has nothing in common 
with Civil Liberty, as we understand that term. On 
the contrary, the freedom of the savage, which is 
mere lawlessness, is a more deadly enemy to Civil 
Liberty than is Oriental despotism, because it is the 
enemy of all Civilization and of all the interests for 
which Civilization stands. And so it was with the 
Anglo-Saxons. Xeither Civilization nor Civil Lib¬ 
erty was their heritage; both have become their 
acquisition. It is simply the grossest falsehood to 
confound the two tilings. 

A brief retrospect of some salient facts in the his¬ 
tory of Britain and of the so-called Anglo-Saxon 
race, which is not entirely a correct designation of 
the people to whom the name is given, will be 
proper for a full understanding of our subject. 

The greater part of the population of Britain, 


CONSTITUTIONAL AND CIVIL LIBERTY. 


69 


the country now more commonly known to us as 
England, when it first emerged from ohscurity and 
became known to the civilized world, in the time 
of Julius Caesar (b.c. 55), belonged to that great 
branch of the Aryan race designated as the Celtic. 
The Celts would seem to have been the first inhab¬ 
itants of all Western Europe, therein including the 
countries now known as Spain, France, England, 
Scotland, Ireland, and probably Northern Italy. In 
the Dispersion of the Hoachidae from the Plains of 
Shinar they were the first to blaze their way across 
Asia Minor and through the virgin forests of Europe 
to find their assigned habitation along the shores of 
the Western Ocean. Immediately following them, 
or perhaps merely separating from them towards 
the latter stages of their journey, came the kindred 
race of the Teutons, who occupied the central 
regions of Europe, now known as Germany, and 
who also branched off towards the north, into the 
countries of Scandinavia. Eastward of the Teutons, 
and occupying the greater part, if not all, of Eastern 
Europe, were located the Sarmatians or Sclavonians. 
These three great races, the Celts, the Teutons, and 
the Sarmatians, who may have been intended to be 
designated in the tenth chapter of Genesis by the 
names of Ashkenaz, Piphath and Togarniah, sons 
of Gomer, who divided the regions of the North and 
West between them, were busy with the occupation 
of Europe north of the great mountain ranges of 
the Alps and the Balkans, while another Japhetic 
or Aryan race, the greatly more famous Javanians 
or Pelasgians, were colonizing the European lands 
alono; the shores of the Mediterranean Sea. 

O 


70 


HISTORY OF THE DEVELOPMENT OF 


To these four races was assigned the colonization, 
and yet not the civilization of Enroj)e; for in their 
struggle with the material forces of nature, like all 
pioneers and frontiersmen, they lost the arts of civ¬ 
ilization, and these had to he supplied again from 
one of the great centres which had always retained 
them, and by one of the races which had never 
degenerated into rudeness or barbarism, the Hamite 
race of the Phoenicians. To the Phoenicians, as we 
have seen, the Greeks and Pomans, the two most 
famous branches of the Javanian race, owed the 
best part of their civil institutions, and especially 
the principles of Civil Liberty, which the Phoeni¬ 
cians themselves had Imrrowed from the Mosaic 
institutions. The same Phoenicians also, and after 
them their disciples, the Greeks and Romans, main¬ 
tained a large intercourse with the Celtic nations, and 
planted their civilization on the shores of the West¬ 
ern Ocean. The Phoenicians, no doubt, visited 
the coasts of Gaul and Britain upwards of a thou¬ 
sand years before the Christian Era; the Greeks 
followed in their track about six hundred years 
before the same Era. Of the influence of both upon 
the Celts it would carry us beyond the scope of our 
subject to speak here in detail. Suffice it to say 
that when the Romans came into contact with the 
Celtic nations, and especially when, under the leader¬ 
ship of Julius Ceesar, they entered upon the con¬ 
quest of the two most prominent of the Celtic 
nations, Gaul and Britain, they found them in a 
greatly more advanced condition than were tlieir 
neighbors, the Teutonic tribes of Central and R'orth- 
ern Europe. The Celts, in fact, had reached a com- 


CONSTITUTIONAL AND CIVIL LIBERTY. Y1 

paratively higli degree of Civilization, more in Gaul, 
it is true, than in Britain; while, beyond the Bhine, 
the Germans had scarcely progressed beyond the 
barbarism of the nomadic races. 

It was not ^^dthout a sharp struggle that Gaul and 
Britain yielded to the Roman arms, and adopted the 
Roman Civilization. Julius Cjesar was the Roman 
conqueror of Gaul; he was also the first of Roman 
leaders to land in Britain. Twice he invaded that 
country, and advanced beyond the Thames, defeat¬ 
ing the forces that were opposed to him in several 
pitched battles. But his conquests were not per¬ 
manent. Rot very long afterwards, however, in 
the reign of the Emperor Claudius, the Romans 
again landed in Britain, this time to remain; and 
soon their dominion was extended from the Eng¬ 
lish Channel to the foot of the Grampian Hills in 
Caledonia, the present Scotland. The Highlands 
of Scotland, however, they never subdued; nor 
did the Roman arms ever reach the sister island of 
Ireland. 

Celtic Britain, like Celtic Gaul, when once con¬ 
quered and aggregated by the Romans to their vast 
empire, became intensely Roman, more Roman even 
than Italy itself. The Roman Civilization was 
speedily introduced, therein including that most 
civilizing element of it the Roman Jiirisprudence, 
and in course of time also the Christian Religion; 
and Romanized Britain, like all the other Roman¬ 
ized Celtic nations, took most kindly to it. Then 
it was that her great roads were constructed, and 
most of her great cities founded. Britain even gave 
rulers to the Roman Empire, and contributed not a 


72 


HISTORY OF THE DEVELOPMENT OF 


little to the strength and power of the Roman do¬ 
minion in other quarters of the world. 

But in A.D. 427 was presented the strange spec¬ 
tacle, strange at all events to Roman eyes, of the 
voluntary withdrawal of the Roman legions from a 
country which had constituted an integral portion 
of the Empire for nearly four hundred years. All 
the frontiers of the Empire were at the time 
subject to the constantly increasing attacks of the 
Barbarians, and these had even penetrated into 
Gaul and Italy and Spain. The Central Roman 
Government at Ravenna had no longer the troops 
wherewith to guard so distant a province as Britain, 
and the Britons were left to themselves, to order 
their atlairs as they pleased. 

The sequel of their history for two hundred years 
and upwards is involved in obscurity and fable. 
Only this much is known with certaint}"—that the 
government, whatever it was, which the Britons set 
up after the withdrawal of the Roman legions, 
proved to be feeble and inefficient; that the Scots 
and Piets from the Highlands of Caledonia broke 
through the frontier lines of fortification, and 
greatly harassed the disorganized Britons; that, in 
order to repel their northern invaders, the Britons 
availed themselves of the services of piratical hands 
of Angles, Saxons, Jutes, and other tribes from the 
northern coast of Germany who were then making 
their appearance on the shores of Britain; and that 
these Teutonic bandits, with the characteristic faith¬ 
lessness, dishonesty and treachery which uniformly 
marked the conduct of all the hordes tliat overran 
the Roman Empire, soon turned their arms against 


CONSTITUTIONAL AND CIVIL LIBERTY. 


73 


the people into whose service they had entered, and 
conquered the greater part of the country for them¬ 
selves. The Anglo-Saxons, by which composite 
name these different Teutonic conquerors of Britain 
have become known, were not content to imitate the 
course pursued by the cognate tribes of the Franks, 
Goths and Vandals in France, Spain and Italy, 
where the previous Latin and Romano-Celtic pop¬ 
ulation was only partially dispossessed of its lands, 
and was permitted to come into convention with the 
Teutonic invaders, in such manner that both were 
permitted in a measure to continue their respective 
holdings and to enjoy such security of person and 
property as the barbarous conditions of the situa¬ 
tion w^ould admit. On the contrary, with a thirst 
for blood and slaughter unexampled even in those 
days of blood, the Anglo-Saxons almost wholly ex¬ 
terminated or expelled the Britons from all the 
eastern part of the island; and these latter retired 
to the mountainous districts of the West, into 
Wales, Cumberland, Cornwall, Devonshire, and into 
Armorica or Brittany in France, where they found 
a kindred people. 

The contest between the Britons and the Anglo- 
Saxons lasted several centuries; but the latter 
almost constantly gained ground, being reinforced 
by new recruits from Germany, and one by one 
established their seven petty principalities known 
as the Heptarchy. According as they progressed, 
Christianity and Civilization perished before them; 
and the island, except for the little gleam of light 
which was kept ali\^e in Wales, relapsed into a con¬ 
dition of barbarism worse than had ever prevailed 


74 


HISTORY OF THE DEVELOPMENT OF 


l)efore tlie Roman conquest. The cities, cliurches 
and pnl)lic works that had l)een constructed in the 
Roman times were in great part destroyed. Even 
the City of London is supposed l)y some to have 
hecome for a time wholly deserted. Desolation 
reigned where fertile fields had been, and the camps 
of savages took the place of a teeming industrial 
po[)ulation. The Goths, ALandals, Burgundians, 
Franks, and other nations that had overrun Southern 
Europe, had been somewhat checked in their career 
of destruction h}^ the fact that they professed, and 
were therefore to some extent controlled by the 
bastard Christianity which had been propagated 
among them by the emissaries of Arianism. The 
Anglo-Saxons were thorough pagans, iml)ued only, 
so far as they had any religious belief, with the 
worst su])erstitions of ()dinism; and such tliey re¬ 
mained for upwards of two hundred years, notwith¬ 
standing that they were all tlie time in constant 
contact with the Britons of Wales, as well as with 
the Scots of Caledonia, who had in the meantime 
become Christians. 

To any one at all familiar with such liistory as we 
have of the Anglo-Saxons during this period of 
rude barliarism it is perfectly plain that they had 
neither civilization of any kind, nor any institutions 
from which it was possible to evolve even the sim¬ 
plest principles of Civil Lil)erty. The Anglo-Saxon 
principalities of the Heptarchy did not differ much, 
if at all, in tlieir structure of goverument, from the 
tribal arraugements of the North American Indians. 

But Rome came to conquer Lngland, as she had 
conquered Britain—this time, however, not in pan- 


CONSTITUTIONAL AND CIVIL LIBERTY. 


75 


oply of war,—for the sword was no longer her 
weapon,—hut with the cross of Christianity, to re¬ 
store the Civilization which Anglo-Saxonism had pre¬ 
viously antagonized and rejected. Very ditlerent, 
indeed, from the methods of Julius Ciesar, Agricola, 
and Vespasian, were those of Augustin the Monk 
and his associates, commissioned by Pope Gregory 
in the year 596 to bring the Anglo-Saxons into the 
Christian fold. We know the often repeated and 
probably authentic story of the somewhat epigram¬ 
matic exclamation of the Pope, when he saw some 
comely youths of the Anglo-Saxon race in the mar¬ 
ket-place of Rome, and was told that they were 
Angli. “ Non Anyli, sed Angeli, si modo Christiani,” 
said the Pontiff—i7ot Angles, but angels, if only 
they were Christians.” And Gregory immediately 
resolved upon the attempt to bring the stubborn 
barbarians within the pale of Christianity. 

The attempt was successful. In the course of 
about 150 years the Anglo-Saxons of the Seven 
Principalities were induced to accept the doctrines 
and morality of the Christian Religion as their rule 
of conduct; and although a very large amount of 
the northern paganism always remained in the 
country, many of the Anglo-Saxons justified by their 
virtues the prognostications of the Roman Pontiff 
as to the possibilities of their race. We may well 
question, however, looking hack from our present 
standpoint upon the varied history of that race, 
whether there is anything in that history to justify 
the characterization of the race as angelic. That 
epithet applied to the Anglo-Saxons could only be 
applied in sarcasm. 


76 


HISTORY OF THE DEVELOPMENT OF 


But let US resume our narrative. We are seek¬ 
ing, with the lamp of reason in our hands, through 
a dreary desert of rude barl)arism and through the 
quicksands of an imperfect civilization not yet 
wholly freed from the taint of Odinism, for some 
traces of the principles of Civil Liberty; and we are 
seeking in vain. Both the word and the thing are 
equally unknown in these pages of Anglo-Saxon 
history. 

In the year 827 the petty principalities of the 
Anglo-Saxon Heptarchy became all merged in the 
one Kingdom of England under Egbert of Wessex, 
and England, the England of the Anglo-Saxons, 
first began to be a nation. It was an era of consoli¬ 
dation in the island, for about the same time 
(a.d. 834) Kenneth MacAlpin united under his own 
sceptre all the petty principalities of Scotland, and 
initiated the nationality of the northern kingdom; 
and even in Wales, which had been divided into 
three principalities, there was a reduction of the 
number to two. The consolidation of Continental 
Europe under Charlemagne and the nominal resto¬ 
ration of the Roman Empire by and for him (a.d. 
800) may have furnished an object-lesson for this 
movement towards concentration of poAver and cen¬ 
tralization in Britain. But while the union of the 
Anglo-Saxons under one goA^ernment may haA^e 
served the ultimate purpose of civilization by dimin¬ 
ishing the number of petty despotisms in the island, 
as it undoubtedly did, it cannot be said that there 
Avas any appreciable development of liberal institu¬ 
tions, looking to the establishment of anything in 
the remotest degree resembling Cml Liberty during 


CONSTITUTIONAL AND CIVIL LIBERTY. 


77 


the stormy and turbulent period of the Anglo-Saxon 
Monarchy, extending over 239 years (a.d. 827-1066), 
of which over a century was passed in contests with 
the Danes, and 25 years (a.d. 1017-1041) were oc¬ 
cupied by the actual conquest and domination of the 
Danes over the Anglo-Saxons. 

But during this Anglo-Saxon period, two public 
men of more than usual ability and high character, 
who had both been educated to some extent in the 
Roman Civilization, and of whom one at least had 
the advantage of long residence on the Continent 
of Europe, Alfred the Great (a.d. 871-900) and Ed¬ 
ward the Confessor (a.d. 1041-1066), contributed 
greatly to promote good government and to advance 
the cause of civilization among the Anglo-Saxons. 
Alfred and Edward both acquired the reputation of 
wise legislators, to such an extent as that, in after 
ages, during the days of Rorman tyranny and Plan- 
tagenet domination, whenever there was any peti¬ 
tion to the sovereign for a redress of grievances, it 
was generally coupled with a prayer for the restora¬ 
tion of the laws of Edward and Alfred. In conse¬ 
quence of this frequent reference, these two Anglo- 
Saxon sovereigns of England received the credit of 
having introduced into the country many legal pro¬ 
visions, which were, in fact, only the evolution of 
subsequent centuries, and most frequently were only 
the expression of the desires of the people for better 
legislation and for relief from the galling tyranny 
of the Plantagenets. 

Both Alfred and Edward indeed deserve the 
credit of enlightenment beyond their age. They 
did much to temper the rude institutions of the 


78 


HISTORY OF THE DEVELOPMENT OF 


Anglo-Saxons, if institutions they can he said to have 
had in any proper sense of the term. But it is now 
well-estahlished that the improvements which they 
made were not so much developments of Anglo- 
Saxon institutions as introductions from the juris¬ 
prudence and the civil polity of Rome and Ireland. 
From the Brehan Laws of the latter country Alfred 
derived much of his legislation; from the capitu¬ 
laries of Charlemagne, in which the great Frankish 
monarch had sought to substitute Roman ideas for the 
Teutonic usages of his Franks, the good and wise Ed¬ 
ward transferred bodily a great part of the legislation 
which he induced his people to accept. From the 
latter source it is now well settled that the system of 
trial by jury, with all its possibilities for good and 
evil, Avas derived. That system, so long, so ignorantly 
and so arrogantly claimed to have been of Anglo- 
Saxon origin, is now shown conclusively to have been 
adopted by the Anglo-Saxons from the Franks; and 
even the Franks did not originate it, for the principle 
of it is found in the Roman Jurisprudence, and it 
may have been even of more ancient origin. 

The governments of Alfred and Edward Avere 
temperate and beneficent despotisms. There was 
no Civil Liberty in their day. The infiuence of the 
great nobles, of course, Avas felt, as it is felt even 
in the most absolute of despotisms; hut the people 
as such had no Amice in government. In the Anglo- 
Saxon period, it is true, of England’s history, there 
Avas no Feudal System, as there Avas in other nations 
of Europe ; and the people were therefore free from 
the infamous slavery of Feudalism. That immu¬ 
nity, indeed, Avas not, as already intimated, greatly 


CONSTITUTIONAL AND CIVIL LIBERTY. 


79 


to their credit. The Anglo-Saxons had massacred 
and exterminated the Britons; the other Teutonic 
Barbarians had only subjugated the peoples among 
whom they came. There was no need for the Feu¬ 
dal System among the Anglo-Saxons, because there 
was no conquered people to he kept in subjection. 
The system of wholesale slaughter and indiscrimi¬ 
nate massacre was much more simple and ehectual. 
What the Anglo-Saxons might have developed from 
the institutions of Alfred the Great and Edward 
the Confessor, in the absence of that System which 
weighed so heavily upon the civilization of the rest 
of Europe, it is useless to conjecture; for the Feu¬ 
dal System, with all its horrors, speedily and unex¬ 
pectedly came upon them. 

In A.D. 1066, a most memorable year in English 
history, William the Bastard, Duke of Kormandy, 
otherwise known as William the Conqueror, invaded 
England with his horde of hungry Normans, worthy 
descendants of the savage pirates from Norway and 
Sweden and Denmark, who had infested all the 
coasts of Western Europe for* nearly three centuries 
with their horrid cruelties and barbarities, and con¬ 
quered the country in a single campaign, in fact in 
a single l)attle, and held it with a strong hand. He 
established the most tyrannical and galling despot¬ 
ism in all Europe, introduced in all its rigor the 
Feudal System, then dominant on the Continent of 
Europe, parcelled out all the lands of England 
among his greedy followers, and reduced the Anglo- 
Saxons to a condition of slavery or serfdom, for 
which j)robahly there has been no parallel in Europe 
outside of Russia. 


80 


HISTORY OF THE DEVELOPMENT OF 


His immediate successors—William Rufus and 
Henry I.—were fitting imitators of his depotism, and 
under these first three monarchs of the Horman 
line England was the most absolute monarchy in 
Plurope. In the contest which ensued between the 
usurper Stephen and the Empress Queen Matilda, 
and subsequently between Stephen and Matilda’s 
son, Henry Plantagenet, there was the first rift in 
the clouds that enveloped England as with a dense 
pall; hut the rift was small and almost impercepti¬ 
ble, and the rule of the Plantagenet kings of the 
Horman race was quite as autocratic as that of the 
Conqueror himself. Henry 11., Richard Coeur de 
Lion, John Lackland and Henry III. were quite as 
despotic as any monarchs of their time in Europe; 
and there was no Civil Liberty in England in their 
day, nor anything that could by any possibility be 
mistaken for it by any reasonable man. 

And yet there were evidences of a contest for 
liberty as early as the reign of Henry II. But the 
contest was not made by the people, or even 
by the feudal barons, hut by the heroic cham¬ 
pion of the people, the sainted Thomas a 
Becket, Archbishop of Canterbury. He alone 
was hold enough in his age to resist the royal 
tyranny and oppression. He was called an ambitious 
churchman by Henry, and by the rufilans and 
minions who aided the monarch in the infamous 
work of the prelate’s assassination; and he has 
been so designated by the modern rutfians and 
minions, who are ever ready, in their writings, to 
asperse the memory of the champions of truth and 
right and justice when they have to deal with this por- 


CONSTITUTIONAL AND CIVIL LIBERTY. 


81 


tion of European history. But the evidence now is 
very plain to the impartial mind that the martyred 
Archbishop of Canterbury was the champion of 
popular right against the tyranny and oppression of 
an unprincipled monarch. 

Unprincipled Henry II. of Anjou most undoubt¬ 
edly was, as were all the kings of England of his 
race. The Plantagenet Kings, as they are com¬ 
monly called, were not generally without ability; 
hut, as a race, they are probably the most 
notorious royal line in all history for their utter 
dishonesty and total want of all moral principle. 
There was no reliance to he placed upon their honor; 
they were false alike to friend and foe; they never 
made a promise that they did not break whenever 
opportunity occurred and their self-interest seemed 
to demand the repudiation. This was the character 
of the whole race, and of each and all its members, 
from its founder, Henry H., to the last of the line, 
Richard III.—although, perhaps, we should except 
from that sweeping condemnation the well-meaning 
but weak and irresolute Henry YI. of the House of 
Lancaster. The tyranny of the Plantagenet monarchs, 
however, was not directed against the people, who at 
the time were mere serfs and slaves of their feudal 
masters, so much as against the Church and the 
feudal barons, both of whom had something where¬ 
with to tempt the cupidity of the royal profligates, 
their retainers and favorites; and, when the inevit¬ 
able conflict came, it was a conflict not betw^een the 
monarch and the people, but between the monarchs 
on the one side and the clergy and the feudal nobles 
on the other. It may be said, however, that when- 


82 


HISTORY or THE DEVELOPMENT OF 


ever the City of London, which may be assumed to 
have represented and embodied whatever of truly 
popular spirit there was in the country in those 
times, appeared in the conflict, it was always on the 
side of the clergy and of the cause represented by the 
Church. It is remarkable, however, how feeble 
and irresolute the part of the City of London always 
was in the contest; and it seems all the more feeble 
and irresolute when we compare it with the bold 
stand often taken by the great Cities of Continental 
Europe in defense of their rights. 

King John Plantagenet, sometimes called John 
Lackland, the brother and successor of an almost 
equally worthless profligate, who has been most 
unworthily exalted into a hero of romance, and 
called Richard of the Lion Heart, is generally 
represented as the weakest and the worst of the 
Plantagenet race. It is necessary in his case to deal 
in comparisons. Utterly unprincipled he undoubt¬ 
edly was; and he depredated alike upon the Church 
and the feudal nobles, and aroused the antagonism 
of both, as well as that of the City of London. In 
the 16 th year of his reign, a.d. 1215 , probably to 
England the most memorable year in her history 
after the Korman Conquest, a combination of the 
barons and clergy, under the leadership of Stephen 
Jjangton, Archbishop of Canterbury, Primate of 
England and Cardinal of the Roman Church, most 
worthy successor of the martyred Thomas a 
Becket, was formed against the King. It was an 
armed combination; and yet no war was declared, 
or was intended to be declared. The parties met for 
conference on the famous held of Runnymede, near 


CONSTITUTIONAL AND CIVIL LIBERTY. 


83 


Windsor. TviiiiJ^ John had with him a large part, 
perhaps even a majority, of the most powerful 
noliles, under the command of the Earl of Pem¬ 
broke, the most intiuential noble in the realm at the 
time. Stephen Langton had behind him a com¬ 
pact and resolute force composed of all the orders 
ot the State, and powerfully supported by the 
retainers of the Chty of London and the yeomanry 
of his own County of Kent. King John was reluc¬ 
tant to provoke his opponents to extreme measures, 
and the result was that he found himself constrained 
to attacli his signature to a document drawn up by 
Langton, and intended to guard against the recur¬ 
rence of such oppressions as those of which John 
had been guilty. This document was the famous 
Magna Cliarta, or Great Cliarter, and through it 
came the first dawn of English Liberty, of which it 
has always, and with some appearance of justice, 
lieen regarded as the palladium. 

The Great Charter, it may be remarked, does 
not seem to have l)een so-called on account of its 
supposed transcendent importance as the foundation 
of English Constitutional and Civil Lilierty, but by 
com})arison witli another Charter of minor import¬ 
ance, called the Charter of the Forest, extorted from 
King John aliout the same time. 

Magna Cliarta is a document frequently referred 
to and rarely read. It may be interesting to recur 
to it with some detail. It comprises 39 articles or 
chapters, but some enumerate 63 articles or chap¬ 
ters. The copies seem to differ, and the difference 
appears to have been occasioned probably by the 
inclusion of the Charter of the Forest, or some por- 


84 


HISTORY OF THE DEVELOPMENT OF 


tions ot it, ill Magiia Cliarta. The difference, how¬ 
ever, for all present jinrposes is wholly nnirnportant. 
Most of the provisions of the Charter are mere reg¬ 
ulations of the iniquities then existing of the Feudal 
System, and concessions hy the monarch to the 
Church and the feudal nobles; others are conces¬ 
sions by the Church and the nobles to the monarch. 
The })eo})le, as such, and as distinguished from the 
clergy and the nobles, had no part in the arrange¬ 
ment, exce})t incidentally; hot the incident does 
infinite credit to the sagacity and wise statesmanship 
of Stephen Langton. 

All the provisions of Magna Charta, of course, so 
far as they ai’e restrictions n])on the arbitrary power 
of the monarch, and so far also as they are regula¬ 
tions of the Feudal System and in restraint of that 
System, are in the interest of the cause of Civil 
Liberty; for all checks upon arbitrary power are in 
that interest. And in this sense Magna Charta de¬ 
serves all the eulogies that have been pronounced 
n[)on it. But when the document is examined in 
detail, and Avith reference to its intrinsic value as a 
Cliarter of Civil Liberty, it merely serves to bring 
the hhish of shame to our cheeks to think liow 
deeqily sunk in the degradation of feudal slavery 
must have been the men, whose blood Hoavs in our 
own veins, and who could have set so much store 
on a document Avhich merely sought to raise them 
to the level of the comparative freedom enjoyed at 
the time l)y the peo})le of France, Spain, and Italy, 
and even by those of (Terniany. For Afagna Charta 
proves conclusively the utter slavery into which 
England had fallen. It gave no rights to English- 


CONSTITUTIONAL ANI) CIVIL LIBERTY. 


85 


men that were not already enjoyed in far i^reater 
degree by all the other peoples of Western Europe. 
But regarded as a proclamation of the limitation of 
the arbitrary j)owers of feudal monarchy, the docu¬ 
ment had immense value and great possibilities, 
although the seed then sown was soon choked h}' 
briars and brambles, and did not actually germinate 
for many ages afterwards. 

Only three provisions of the Great Charter can 
he said to have been distinctly and positively in the 
interest of Civil Liberty, ddiese are the first, the 
ninth and the twenty-ninth. Of these the first 
guarantees the freedom of the Church, which, to 
those who fully understaud the conditions of those 
times, means vastly more than what it |)urports to 
us to mean, as tlie equivalent of Avhat we now would 
designate as freedom of conscience and freedom of 
religious worship. It meant the u])raising of the 
people by means of tlie Church, and tlie gradual 
abolition of serfdom and feudal slavery in favor of 
all wdio sought the protection of the Churcli. For 
in those days, as in all other days, there were tAvo 
[parties in tlie State; hut then they Avere the party 
of the Church and tlie party of Feudalism, and the 
party of the Church AAuas that of the l^eople. 

The ninth Article guarantees tlie ancient char¬ 
tered liberties of the City of London and of the 
other cities and toAvns of tlie country. And Avhen 
Ave recall the fact that these chartered liberties AA^ere 
the remains of old Roman Ci\ul Liberty saved from 
the ruin hrouglit upon Civilization by the Barba¬ 
rian Conquest and the establishment of Feudalism, 
Ave can the better appreciate tlie significance of sucli 


86 


HISTORY OF THE DEVELOPMENT OF 


a guarantee. The provision also becomes all the 
more important to ns when we rememl)er that onr 
own civil institutions are based more upon the 
usages and customs of the City of London than 
upon the usages and customs generally of the Eng¬ 
lish realm, as our law-books will abundantly show us. 

The twenty-ninth Article, which lias now become 
by far the most important provision of the whole 
Charter in its modern development, prescribes that 
no freeman shall be disseised of *iiis land, impris¬ 
oned or condemned, but by the judgment of his 
peers, or by law. This is substantially and almost 
in terms the same provision that has been incorpo¬ 
rated into our American Federal Constitution, as 
the Fifth Amendment, that no man shall he de¬ 
prived of life, lilierty, or property, except by due 
process of hiAv;” and its purport Avas to substitute 
due process of law for the arbitrary Avill of the 
mouarch. But however beneficial this provision 
Avas intended by Cardinal Langton to lie, and Iioav- 
ever overshadowing all others it has noAv become in 
importance, it must be conceded that at the time it 
had not the significance AAdiich it has since acquired. 
Its guaranty Avas restricted to the “ freemen ” of 
England, a term then synonymous Avith landholders, 
and AAdiich included only the feudal classes and their 
retainers; and inasmuch as the vast majority of 
Englishmen at the time AA^ere villeins or cop}j-holders^ 
the precise equiAuilent of Russian serfs in our oavu 
day, and practically not different from slaves, it is 
quite apparent that its application Avas exceedingly 
limited. It is presumed to have definitely estab¬ 
lished trial by jury in England; but it Avas many a 


CONSTITUTIONAL AND CIVIL LIBERTY. 


87 


long day before trial by jury, as we now understand 
it, was established in that country. 

The best that can be said of Magna Cliarta is that 
it possessed immense possibilities, and that it was a 
sharp check upon arbitrary powers. For this we 
are indebted to the master-mind and the patriotic 
humanity of Stephen Langton. If it be sought 
wherein he acquired its suggestion, we have to look 
no farther than the irrepressible conflict between 
Feudalism and the Roman Civil Jurisprudence— 
between the State, so-called, and the Church, the 
former the inheritor of all the barbarous usages, 
savage customs, and brute force of the Northern 
Barbarism, the latter the custodian of all that was 
left of the Roman Civilization. It is a curious 
fact that the discovery in a.d. 1137, which was 
78 years before Magna Charta, of a complete copy 
of the Institutes of Justinian in the little repub¬ 
lican City of Amalfi, in Southern Italy, greatly 
stimulated the progress of free institutions in the 
Italian Peninsula; and we have already seen that 
the spirit of liberty soon, to a greater or less extent, 
crossed the Alps and pervaded all the other nations 
of Europe. It is plain where Stephen Langton, 
himself a Doctor of the Roman Canon Law, and 
undoubtedly well versed in the Roman Civil Law, 
derived the inspiration which dictated the prepara¬ 
tion of Magna Charta. 

Before Magna Charta there was neither Constitu¬ 
tionalism nor Civil Liberty in England. Prior to 
its promulgation the government of the country was 
an absolute monarchy—the most absolute, in fact, in 
all Europe, not even excepting the Russia of that 


88 


HISTORY OF THE DEVELOPMENT OF 


(lay—we niiglit almost say an oriental absolutism, 
were it not that the Christian Keligion would not 
have permitted the existence of oriental ahsolutism 
in England any more than elsewhere in Europe. 
It was only a question of a rigid despotism, like 
that of William the Conqueror, or of a mild and 
beneficent absolutism, like that of Alfred and Ed¬ 
ward the Confessor. All legislation, all judgment, 
all power, emanated from tlie monarch, and were 
exercised b}' him without any control whatever b}" 
the people. Assemblies of the notables were some¬ 
times called for special purposes, Just as the general 
of an army might summon his ])rinci])al othcers to 
a council of war for advice, yet Avithout intending 
to be bound therel)y unless its deliberations suited 
him ; hut such a thing as particii)ation by tlie peo¬ 
ple in the affairs of government was utterly un¬ 
known before Magna Charta. There Avas a Witena- 
Gemote, it is true, or General-Council, anioug the 
Teutonic Tribes, as there Avas and is among all 
barbarian and saA^age tribes; for in this matter, 
strangely enough, extremes meet. Extreme democ¬ 
racy is the result of savagery, as Avell as of tlie 
highest civilization : absolute monarchy is an inter¬ 
mediate state. But in the Anglo-Saxon monarchy, 
Avhich succeeded the Heptarchy, and in the IMorman 
and Plantagenet days, there Avas no Witena-Gemote, 
no parliament, no jiarticipation, direct or indirect, 
of the people in the affairs of government; and anv 
pretense to the contrary is the Avildest vagary of the 
imagination. If, as has been stated, assemblies Avere 
summoned from time to time, it Avas ahvays for a 
special purpose—to raise revenue for the sovereign. 


CONSTITUTIONAL AND CIVIL LIBERTY. 


89 


and for nothing else wliatever; and these assem¬ 
blies were sometimes bold enough, in consid¬ 
eration of the donations which they made to the 
sovereign for the purpose of revenue, to petition for 
a red ress of any grievances under which the people 
were supposed to labor; the autocratic expression of 
the sovereign’s will in response to the })etition was 
the legislation that was enacted. But if this lie leg¬ 
islation by act of parliament, we fail to see wherein 
it differs from oriental legislation of precisely simi¬ 
lar cliaracter. 

Magna Charta was indeed a new departure in the 
political affairs of England; and ^^et it was for a long 
time no more than a brutam fulmen^ a mere prQimn- 
ciamento without ])ractical effect. It did not ter¬ 
minate alisolntism or arbitrary monarchy. Every 
monarch of England, from Jolin Plantagenet down 
to the last of the Stuarts, swore, and several of them 
swore repeatedly, to uphold it and to observe its 
pro\dsions; and every one of them, with possibly 
three exceptions, perjured themselves by a violation 
of their oath whenever an opportunity offered itself. 
The exce[)tions were the sainted hut weak Henry 
VI., Mary Tudor, and the hoy-king, Edward VI., 
who was too young to become capable of such vio¬ 
lation. The provisions of Magna Charta were 
regarded, whenever the necessities of the monarch 
dictated a regard for them; they were violated 
without hesitation whenever it suited tlie purposes 
of the monarch to disregard tliem. John himself 
violated them almost as soon as his signature upon 
upon the parchment was dry. His son and succes¬ 
sor, Henry III., a man as utterly destitute of all 


90 


HISTORY OF THE DEVELOPMENT OF 


honest principles as he himself was, swore a dozen 
times to observe them,-and many a dozen times 
violated his oath. The hostile Houses of York and 
Lancaster had hut little regard for constitutional 
guarantees of any kind, except as the occasional 
pretense of their observance tended to strengthen 
their respective causes. The Tudors, Henry VII., 
Henry YHI., and Elizabeth, were the most absolute 
monarchs of their day in Europe, and governed 
with the most utter and the most contemptuous 
disregard of Magna Charta. It was not until, by 
the Renaissance of Literature in Southern Europe 
and the Discovery of America by Christopher Co¬ 
lumbus, the principles of Civil Liberty were every¬ 
where revived on the Continent of Europe, that 
England at last felt the influence about the time of 
the accession of the House of Stuart to the throne 
(a.d. 1603), and Magna Charta was exhumed from 
beneath the dust of ages which had accumulated 
over it, and thenceforward received new life from 
the development of succeeding ages. 

It may he that some notice should he taken here, 
and apparent exception made, of the legislation of 
Edward I., who did much to improve the laws of 
England, and to whom writers of school-histories 
have occasionally, on that account, given the name 
of the English Justinian, as though he deserved to 
stand by the side of the great Roman Emperor, 
who has linked his name forever to the Codiflcation 
of the Civil Jurisprudence of Rome. Edward 
undoubtedly introduced considerable improvements 
in the laws of England as he found them existing in 
his day; and he, too, swore at his coronation to uphold 


CONSTITUTIONAL AND CIVIL LIBERTY. 


91 


A [ago a Cliarta, and yet did not hesitate repeatedly 
to violate his oath. He was a man of ability, hnt 
his nnjnstifiahle wars upon France and Scotland 
should cover his memory with eternal infamy. The 
improvements which he made in the administration 
of the law—for it was to the matter of administra¬ 
tion rather than to the character of the law itself that 
his improvements were directed — undouhtedly 
tended to advance the civilization of England, and 
in that sense was a gain for humanity; hut it is 
wholly unnecessary to consider the reign of Edward 
I. in connection with the subject of constitutional 
government and civil liberty. His was a persona] 
autocratic government, no worse, hnt no better, 
than that of his predecessors and most of his imme¬ 
diate successors. 

The great contest of a hundred years between 
the rival Houses of York and Lancaster for the 
throne of England, commonly known as the Wars 
of the Hoses (a.d. 1399-1485), did vastly more for 
Civil Liberty in England than did jVIagna Cliarta; 
for it drove out one king after another, diminished 
thereby the royal prestige, and destroyed tlie great 
Yorman barons, the great support of Feudalism and 
of the feudal principle. It is very true that it was 
sought to snp])ly the places of the Horman barons 
with new men; Imt these new men were often from 
the ranks of the people, partisan leaders and success¬ 
ful adventurers, to whom Feudalism was no longer 
the same system which it had been to their predeces¬ 
sors. They took the places of their predecessors, 
hnt they could not wholly impersonate their princi¬ 
ples. The Battle of Bosworth Field (a.d. 1485), 


92 


HISTORY OF THE DEVELOPMENT OF 


by which the great contest was terminated and the 
House of Tudor raised to the throne in the person 
of Henry VH., practically destroyed both York and 
Lancaster, and with them the old feudal monarch}^ 
And although the despotism of the Tudors (a.d. 
1485-1603), during the period of 118 years in 
which they ruled, was greater tlian that of any Eng¬ 
lish monarch since William the Conqueror and his 
immediate successors, yet the suspicion of illegiti¬ 
macy which attached to tlieir origin and the growth 
elsewhere of free principles, which we have already 
noticed, made this, the darkest hour for English 
Civil Lilierty, the hour before its dawn. 

Strange as the assertion may seem, it is neverthe¬ 
less the fact that'the dawn of Civil Liberty in Eng¬ 
land was contemporaneous with the accession of 
the Scottish House of Stuart to the throne of that 
country (a.d. 1603). But the proof of tlie fact is 
easily accessible to those who would find it. 

Have the Stuarts, then, beeiv maligned? Or, 
were they merely the victims of circumstances? 
Their very name has almost l)ecome synonymous 
with despotism and arbitrary power. Tliey were, or 
some of them, at all events, were strenuous advoeates 
of wliat has ])een called “ the divine right of kings,” 
the right of kings to reign and govern autocrat¬ 
ically regardless of their people, and without any 
voice by the people in the matter of government. 
There were four of them (a.d. 1603-1688); and one 
of the four went to the scattbld a victim of his auto¬ 
cratic doctrine, and another went into exile for tlie 
same reason. The two who suffered, it may be 
remarked iiarenthetically, as usuall}^ happens in 


CONSTITUTIONAL AND CIVIL LIBERTY. 


93 


such cases, were Ijetter men than the two who 
escaped. And yet it is entirely true that to the 
Stuarts the cause of humanity, of civilization and 
of Civil Liherty, owes a thousand times more than 
it does to all the Tudors and Itlantagenets that ever 
lived. Considered absolutely and upon their own 
merits, they certainly do not deserve very great con¬ 
sideration from us. Three of them were narrow¬ 
minded l)igots; the other was a rom and a hlack- 
guard. And yet they were all •intinitely less 
arbitrary and intinitely less despotic than their 
immediate predecessors, the Tudors, of whom at 
least two, Henry Yin. and Elizal)eth, were the very 
impersonation of despotic monarchy. 

The Parliaments, which had occasionally and at 
irregular intervals been convened in preceding 
reigns, not to enact legislation, hut for the sole pur¬ 
pose of sui»plying the sovereign with the revenue 
which he required, and which had occasionally 
extorted a promise of a redress of grievances as the 
condition for the supply of the desired subsidy— 
and the redress did not often go very tar beyond 
the mere promise, since the petition for redress was 
usually repeated at the assend)ling of every Parlia¬ 
ment—now became regular, were convened at reg¬ 
ular intervals, and assumed to enact general legis¬ 
lation and to take the initiative in such legislation. 
There can he no question that this power of the Par¬ 
liament began with the Stuarts. Hor can there he 
any (piestion that the best part of the legislation 
which our American colonists brought from England 
with them, and which was found to he suited to 
our altered conditions and our free institutions, was 


94 


HISTORY OF THE DEVELOPMENT OF 


legislation enacted in the reign of the Stuarts, and 
with their assent. If you will turn to our Ameri¬ 
can statute-hooks, you will tind statutes in force in 
some [)arts of our country to this day which pur¬ 
port to liave Ijeen enacted by kings of England in 
the Parliaments. Some of these are as old as the 
reign of Henry HI., the son and successor of King 
John, who signed Magna Oharta. There is one 
important one passed in the reign of Henry VIH., a 
statute which authorized the disposition of real 
estate l)y will, a thing which was not allowed l)efore 
and which was antagonistic to the feudal law, but 
which Henry purposely encouraged for his own sel- 
tish purposes and his own personal emolument, and 
without reference to the heneticial purpose which 
it actually subserved in sapping a fundamental prin¬ 
ciple of Feudalism. Two or three important meas¬ 
ures also characterized tlie reign of Elizabeth. But 
all these were of a character that might have ema¬ 
nated from the most absolute of monarchs ; they had 
luit little hearing upon the Civil Bights of man, and 
were not intended to foster or protect those rights. 
On the contrary, they seemed in all cases to have 
had a sinister motive on the i)art of the sovereign, 
and to liave been only incidentally etlective for good. 
It Avas not so with the legislation that distinguished 
the reigns of the Stuart monarchs. 

Even if some of the legislation of the Stuart period, 
such as the statute of limitations, the statute of di¬ 
rect descents, the statute to provide for the admin¬ 
istration of the estates of deceased persons, the 
statute to prevent frauds, and other like statutes, all 
of which are in force Avith us, or if not in force Avith 


CONSTITUTIONAL AND CIVIL LIBERTY. 


95 


US, have only l>een superseded hy others (h* precisely 
similar tenor, are colorless, so far as respects the 
civil rights of man and the development of civil lib- 
.ytd there are statutes of this period, legislation 
initiated hy Parliament, and not merely emanating 
from royal grant or royal suggestion, although, of 
course, necessarily receiving the royal assent, which 
is not so colorless. Two of these might he speci¬ 
fied : one designated as the Petition of Pight, which 
enacted that no taxes should l)e imposed except by 
act of Parliament, and that no freeman should he 
imprisoned or disseised, except hy due process of 
law, was passed in the third year of the reign of 
Cdiarles I. (a.d. 1628), received tlie full sanction of 
that monarch, and was, as is apparent, to a great 
extent, only a re-enactment of the provisions of 
Magna Charta; and the second, known as the 
IJabeas Corpus Act, enacted in the 31st year of 
Charles IT. (a.d. 1679), hy which it was made the 
imperative duty of the judges of the courts to give 
speedy and summary relief from all uidawful im- 
})risonnients. If the Stuart sovereigns were at heart 
op[)Osed to these enactments as encroachments upon 
their royal prerogatives and liniitations u})on their 
p(nver, as is not at all inn)Ossil)le or even improba¬ 
ble, they should at all events receive the credit of 
having fully and unreservedly assented to them, and 
thereby to that extent [)romoted the cause of Civil 
Jdberty. Certaiidy no sovereign of England before 
them, and none after them for more than a hundred 
years, participated in the enactment of any laws 
more important to the cause of human freedom. 

But there is another fact that should be mentioned 


96 


HISTORY OF THE DEVELOPMENT OF 


here to the credit of the Stuarts, and which perhaps 
even more nearly concerns us. After the discovery 
of America by Columbus, Spain, Portugal and 
France immediately became active in the work of 
the exploration and colonization of the 'New World. 
John and Sebastian Cabot, A^enetians, in the service 
of Henry VII., animated l)y the great exploit of 
Columbus, went upon a voyage of discovery to the 
northern part of the newly found Continent, and 
sailed along the American shores from Newfound¬ 
land to Virginia. But beyond this England did ab¬ 
solutely nothing towards the colonization of the 
New AVorld for nearly a hundred years. She was 
by no means inactive, however, hut her action took 
the slia})e of piratical depredation upon the com¬ 
merce of Spain and upon the Spanish settlements. 
Drake, Frobisher, Aniyas Leigh, Raleigh, and 
other pirates (outlaws and freebooters, all of them, 
such as would now he summarily executed by any 
civilized nation), under the sanction and connivance 
of that (pieen of pirates, Elizabeth Tudor, who par¬ 
ticipated in their booty, depredated for many years 
upon the Spanish commerce in America, without 
any lionest attempt by any of them, or by any other 
Englishman, to open up America to English com¬ 
merce or to English colonization. It is true that 
Raleigh at last (in a.d. 1585) attempted to plant an 
English Colony on the Island of Roanoake, off the 
coast of North Carolina; hut there is very grave 
question whether even this was not rather an at¬ 
tempt to establish a convenient base of operations 
from which to carry on his depredations against 
Spanish-American commerce than an honest effort 


CONSTITUTIONAL AND CIVIL LIBERTY. 


97 


to phiiit an Eng'lisli Colony in America. At all 
events, it is a curious fact that the colony very soon 
disappeared under circumstances of mystery that 
have never been solved; and that early in the reign 
ot James I., when this species of piracy had become 
somewhat discredited and the new sovereio;n was 
less accommodating or had more sense of political 
and international honesty than his predecessor, 
Raleigh was arrested and committed to the Tower 
of London on a charge practically of piracy, and 
afterwards executed. 

It is also a fact that it was the first of the Stuarts, 
James I., wlio granted the tirst charter for the es¬ 
tablishment of an English colony in America, leav¬ 
ing out of consideration the apparently fraudulent 
attempt of Raleigh; and that eacli and all our 
colonial charters, except one, the last of them (that 
of Georgia), which, however, was merely an imita¬ 
tion of the others, were granted l)y the Stuart kings 
of England. Prior to the time of tlie Stuarts, not 
only did the English Government not encourage or 
foster emigration or colonization, l)nt it absolutely 
prohibited hotli, and souglit even to fetter commerce 
by odious and vexatious restrictions. It seems to 
be ignored or studiously concealed by the ordinary 
historian, that at the time of the accession of the 
Stuarts there were several statutes in force, some of 
them enacted or re-enacted during the Tudor period, 
wlierehy it was prohibited under severe penalties to 
any Englishman to go out of England at any time 
for any purpose without the express permission of 
the sovereign. It was reserved for the Stuarts, vir¬ 
tually, to repeal these barbarous and unreasonable 

7 


98 


HISTORY OF THE DEVELOPMENT OF 


eiHictmeiits l)y the oTTint of ii;eneml peririissioii to 
<»:o out of the country contained in the cluirters 
granted for the planting of the American Colonies. 

It is probably unnecessary to go beyond these 
enactments to show tlie utter absence of all Civil 
Liberty in England before the time of the Htnarts; 
and snthcient has been said to show the great ser¬ 
vice rendered by the Htnarts to the cause of Civil 
Liberty liy the nnllitication of them and by the 
other enactments to which reference has been 
made. 

The question then recurs, why the Stuarts ac- 
(pured the bad reputation which they hold as the u})- 
holders of arliitrary power and absolutism in gov¬ 
ernment. The api)arent anomaly is not very diffi¬ 
cult of explanation, although it is complicated with 
questions that would carry us, perhaps, lieyond the 
limits of our sulqect, but which, when examined, 
would do 110 great predit to England’s lioastful 
claim of being the home of Civil Liberty. Suffice 
it to say that in EngTand, in the days of the Stuarts, 
sulistaiitially the same thing occurred that happened 
afterwards in Erance in the days of Louis X\"I. and 
the French If evolution. The Stuarts were the in¬ 
heritors of an infamous system. Tlie world had 
moved, and the system had become odious. They 
had not moved with the world; at all events, they 
had not moved as rapidly as the world had moved. 
Their professions, indeed, were worse than their ac¬ 
tions. Their actions were infinitely better than those 
of the Tudors and Plantagenets; their professions, 
which were only in the line of the uniform course 
of conduct of the Tudors and Plantagenets, were 


CONSTITUTIONAL AND CIVIL LIBERTY. 


99 


out ot place ill the advanced age. This, after all, is 
the sum total of the indictment which History has 
tound against them. As we have said, we have no 
defence for the Stuarts, except hy comparison; hut 
it is an infamous perversion of history that their 
memory should be loaded with o[>prohrium and 
obloquy, while monsters of vice, like most of the 
Tudors’ and Plantagenets, should have no word of 
animadversion uttered against them for crimes pre¬ 
cisely of the same character as those for Avhich the 
Stuarts have been condemned, hut of far i^reater 
magnitude. 

What Ave desire here especially to say, as our 
conclusion of this first chapter of English History 
in connection Avith the subject of Civil Inherty, is 
that, iiotAvitlistanding the promulgation of JMagna 
Charta, and notAA'ithstanding the assemhling of one 
Parliament in a.d. 1264, to AAdiich the name of Par¬ 
liament is truly applicable, and to Avhich Ave AA’ill have 
occasion to refer in our next lecture, there Avas no 
such thing as Civil Liberty in England, certainly no 
Civil Liberty Avorthy of the name, nothing iu any 
degree Avorthy to be compared AAitli the Civil Lib¬ 
erty enjo^^ed elseAvhere in Euro})e, before the acces¬ 
sion of the Stuarts to the English throne. Hoav 
much there Avas afterAvards, for nearly tAvo centuries, 
Ave shall have occasion to see. But from Avhat Ave 
have said, and from Avhat Ave have indicated as haA^- 
ing occurred iu the reign of the Stuarts, Ave are 
fully justified in regarding the Stuart period as that 
of the dawn of Civil Liberty in England. It Avas 
long before the meridian came, if it has come yet. 
The morning, at all eAmnts, Avas clouded by storm 


100 


HISTORY OF THE DEVELOPMENT OF 


and obscured by strife. To trace the vicissitudes 
of Civil Liberty and Constitutional Government 
through the course of that morning will be the pur¬ 
pose of our next lecture. 


CONSTITUTIONAL AND CIVIL LIBERTY. 101 


LECTUEE IV. 

THE DEVELOPMENT OF CIVIL LIBERTY IN ENGLAND. 

( Continued.) 

We have stated that with the accession of the 
Stuarts to the throne of England came the dawn 
of Civil Liberty in tliat country. The substantial 
proof of the statement is the fact, which no well- 
informed man can controvert, that then, and not 
before then, did constitutional and parliamentary 
government in England begin. It is very true that 
absolutism did not then cease ; and that not without 
a long and weary struggle, war, violence, religious 
intolerance, and the most outrageous violation of 
the principles of Civil Liberty by those who claimed 
to be their devoted adherents, were those principles 
tinally established. Their development was not an 
evolution of pre-existing conditions, as most Eng¬ 
lish writers would have us believe, but the result of 
extraneous influences, to which it may be proper 
now briefly to refer. 

Among the most potent of these influences we 
have already indicated the Discovery of America by 
Columbus and its colonization by Europeans seek¬ 
ing a greater measure of freedom than was allowed 
them under feudal conditions in their own countries. 
Hemmed in by the iron despotism of the Tudors 
and their rigid enactments, which conflned English¬ 
men to their own little island, and would not per- 


102 


HISTORY OF THE DEVELOPMENT OF 


niit them to go out of it, England remained for 
more tlian a hundred years after the Discovery to¬ 
tally inactive in regard to America, except such 
nefarious and infamous action as we have indicated 
of piratical de])redation upon Spanish Commerce 
and murderous raids u])on the Si)anish settlements 
in America. Dut when tlie Stuarts commenced the 
work of colonization, granted their exceedingly lil)- 
eral charters, and nullitied the harl)arous statutes'of 
previous monarchs, which had attempted to draw a 
Chinese wall of circumvallation around England, hy 
granting general authority for emigration to the New 
World, the new era was, in truth, ushered in for Eng¬ 
lishmen, and the door was opened for the enjoyment 
hy them, also, as well as by the other peoples of 
Europe, of the Civil Liberty for which the New 
World ottered an inviting ])rosi)ect. And not only 
was the door opened for the establishment and en¬ 
joyment 1)}^ them of Liberty in the New World, 
but the oi)portunity was likewise afforded for the re¬ 
action upon England itself of the conditions so 
established in the New World, although that re¬ 
action came slowly and almost imperceptibly, and 
only co-operated incidentally in the struggles which 
immediately followed in England. The more imme¬ 
diate causes of tlie struggle we have to seek else¬ 
where, and they necessitate our reference to an 
event which cannot he passed over in any treatise 
upon the subject of the develojunent of Civil Lib¬ 
erty, altlioiigh the influence of the event itself in 
every aspect of it remains, and will no doubt continue 
to he, a subject of rancorous and hitter controversy. 

Twenty-five years after the Discovery of America 


CONSTITUTIONAL AND CIVIL LIBERTY. 103 


(a.d. 1517) was commenced, in Grermany, the great 
revolutionary movement in religion known as the 
Protestant or Lutheran Reformation, directed against 
the alleged corruptions of the Church of Rome, 
then the only existing form of Christianity in 
Western Europe. The movement was initiated, as 
we well know, hy Martin Luther, a priest of the 
Roman Church and a monk of the Order of St. 
Augustine, and soon affected a large part of Grer¬ 
many, leading to great commotions, not only of a 
religious, but likewise of a civil character, and in¬ 
volving all the States of the Oerman Empire and 
the Empire itself. Luther very soon had associates 
and imitators. Among the latter the most promi- 
Tient were John Calvin in Greneva and John Knox 
in Scotland, both likewise priests of the Roman 
Church. The Reformers not only antagonized the 
Church of Rome, but likewise each other; and each 
had his own doctrine and his own religious scheme. 
By their efforts one-half of Europe was taken away 
from the Church of Rome. Most of the States of 
Korth Grermany adopted Lutheranism; one-half of 
the Swiss Cantons, several of the Rhine provinces, the 
States of Holland and Scotland accepted some phase 
of Calvinism, while there there was a large infusion 
of Calvinism both in France and England. France, 
however, nominally remained Catholic, as likewise 
did Spain, Italy, half of Switzerland, South Ger¬ 
many, Hungary and Poland. Henry VHI. of Eng¬ 
land at first took strong ground againt the Lutheran 
movement, and wrote, or more probably caused to 
be written in his name, a pamphlet against the Ger¬ 
man Reformer, which procured for him from Rome 


104 


HISTORY OF THE DEVELOPMENT OF 


the title of Defender of the Faith, which, notwith¬ 
standing his subsequent change of position and the 
intense hostility of most of his successors to Tlome, 
lie and they have continued to this day to bear, 
with an absurd inconsistency that is almost ludi¬ 
crous in its character. Afterwards, liowever, Henry 
broke with Home, set up a movement of his own, 
and established an independent Church in England, 
with himself as its head, but without any very great 
change of the Roman doctrine. Elizabeth con¬ 
firmed the separation, and procured the establish¬ 
ment of a religious system which was a combination 
of the Lutheran and Calvinistic theories, and which 
has since been continued as the State religion of 
England. More than half the people, however, for 
a long time in secret adhered to the old faith; and 
Calvinism, pure and simple, as professed in Scotland 
and Geneva, and partly in Holland, soon numbered 
many adherents. 

The Reformers had no dogmatic union, or bond 
of cohesion, among themselves. They were only 
united in antagonism to Rome, and in protesting 
against the standard of dogma and morality set up 
by the Roman Church ; and it is this one element 
of union of protestation against Rome that has 
given to the movement the name of the Protestant 
Reformation, by which it is usually known. 

With the religious aspect of this Protestant Ref¬ 
ormation, with the criminations and recriminations 
that have arisen from it, with its motives, results, 
justificatiotis, palliations, excesses and defects, if 
such there were, in a religious sense, we have no¬ 
thing here to do, and it would be entirely outside 


CONSTITUTIONAL AND CIVIL LIBERTY. 105 


of the scope of our subject if we attempted to deal 
with it in any such connection. But most of the 
adherents of the Reformation, not all of them, and 
most of those who in logical sequence have rejected 
not only the dogmas of Rome, but all dogma, 
whether it came from Rome, or Wittenberg, or 
Geneva, have ever been loud in their assertion that 
the Protestant Reformation was a movement in the 
interest of Civil and Religious Liberty, the greatest 
movement in fact for human freedom that has ever 
taken place. They claim that by it the shackles 
which Rome would have placed on the human intel¬ 
lect were stricken off, that freedom of conscience 
was established, and religious liberty, and ultimately 
civil liberty, were secured for all time. And this 
assertion has been so frequently repeated and so 
generally accepted, that it necessarily forces con¬ 
sideration of the question of its correctness. 

Apart from the fact that there is not, and cannot 
be, any such thing as religious liberty in the sense 
in which this assertion has generally been made, 
inasmuch as no more in religion than in science, 
mathematics or art is tlie human mind intellectually 
free to reject the known or established truth, in no 
sense whatever was religious liberty, or freedom of 
conscience, established, or even sought to be estab¬ 
lished, by the Protestant Reformation, and it is 
only an afterthought to claim that the Reformation 
had any such purpose. The Reformers never pre¬ 
tended to establish religious freedom, or freedom 
of conscience of any kind, except for themselves. 
Each and all of them claimed to he right, and that 
Rome was wrong; hut dissent from their own sev- 


106 


HISTORY OF THE DEVELOPMENT OF 


era! opinions they persecuted mercilessly when they 
had the power so to do. John Calvin caused Ser- 
vetus to he condemned and burned at Geneva for 
daring to differ from him in some of his opinions; 
and this was not an isolated case, but an illustration 
of their general treatment of each other, as well as 
of their Homan opponents. They never hesitated 
to bring the civil power to aid them in the enforce¬ 
ment of their opinions and to persecute dissenting 
opinion as treason to the State. The immediate 
result of the Heformation was to establish State 
Churches throughout all Central and Northern 
Europe in the place, of the Universal Church of 
Rome, which at least had the merit of bringing the 
nations together in a common worship, instead of 
separating them into antagonistic and bitterly hos¬ 
tile communities. Every State in Europe which 
adopted the Lutheran and Calvinistic system in any 
of its phases made the ecclesiastic organization a 
part of the machinery of the State, and relentlessly 
persecuted, even to the extent of extermination, all 
rival or antagonistic systems. And this continued 
to be the policy of the nations, including England, 
for three centuries and down to the period of the 
great upheaval of the French Revolution. It was 
late even in the present century before several of 
the nations relaxed this policy, and not many of 
them have entirely abandoned it. 

In the face of these conditions, to say that the 
Reformers established religious liberty, or that the 
Reformation had the effect of introducing freedom 
of conscience into Europe, is an evidence either of 
gross ignorance or of still grosser prevarication. 


CONSTITUTIONAL AND CIVIL LIBERTY. 107 


The Reformers themselves pretended to nothing of 
the kind. Ror did they pretend to act in the cause 
and for the interest of Civil Liberty. Religious 
Liberty is an essential element of Civil Liberty, and 
Civil Liberty Avithout freedom of conscience Avould 
be a patent and palpable absurdity. But even if 
they could be separated, it is still the fact that all 
the nations which adopted the doctrines of the 
Lutheran Reformation, together with England, forth¬ 
with became absolute and despotic monarchies, and 
all but England so remained doAvn to tbe present 
century. Calvinism, it is true, allied itself from the 
beginning Avith the principles of Democracy, and to 
that extent undoubtedly promoted the groA\dh of 
Civil Liberty. But the Democracy Avhich it fa¬ 
vored AA^as a democratic Theocracy based upon a 
misunderstanding of Avhat constituted tbe Commoii- 
AA^ealth of Israel. It Avas a Democracy ruled auto¬ 
cratically by the ecclesiastical organization of its 
Church; and a worse despotism probably cannot 
well be conceived. This Avas the kind of govern¬ 
ment which Calvinism set up in the Swiss Cantons 
of which it obtained control, in Holland, to a cer¬ 
tain extent, and as far as it could in Scotland; in 
England aaRcii it obtained control there during the 
period of the so-called English CommoiiAvealth; 
and we had a specimen of the same kind of demo¬ 
cratic theocracy in our Puritan CommonAvealth of 
Massachusetts. 

Certainly Avhatever other benefits the Protestant 
Reformation may have conferred upon mankind, 
neither Civil nor Religious Liberty can be enumer¬ 
ated among them. On the contrary, it may be 


108 


HISTORY OF THE DEVELOPMENT OF 


confidently asserted that its immediate effect was to 
put back the cause of Civil Liberty in Europe for 
three centuries, and to re-establish for a time the 
principles which we have heretofore designated by 
the name of Odinism. It is no answer, of course? 
to this statement that, during the same three centu¬ 
ries, the cause of Civil Liberty also retrograded and 
absolutism became more dominant in those coun¬ 
tries which declined to follow the Reformers in their 
movement. There would be plausibility at least in 
the argument which would attempt to show that 
this, too, was the result of the Reformation. But 
the subject is one which it is unnecessary further to 
follow. It is sufiicient to have called attention to 
the fact, which history conclusively proves, that 
there is no foundation for the claim that the Prot¬ 
estant Reformation advanced in any manner what¬ 
ever the cause of Civil Liberty, and that the very 
reverse of this pro]>osition is true. 

England, with which we are more especially con¬ 
cerned at present, constituted no exception to our 
statement. The condition of England in the great 
religious movement of the Sixteenth Century was 
peculiar. There were but very few of the people 
of that country who had any sympathy with the 
movement in itself, and, as we have seen, the king, 
Henry YIII., caused a pamphlet to be published 
against it. If, in order to subserve a disgraceful 
purpose, which is well known to us, he subsequently 
assumed a position antagonistic to Rome and com¬ 
pelling him to a tacit alliance with the Lutheran 
movement, he still repudiated the doctrines of the 
German and French Reformers. His purpose was 


CONSTITUTIONAL AND CIVIL LIBERTY. 109 


apparently to maintain the doctrines of the English 
Church unchanged and in substantial accord with 
those of Rome, but to set up a sejiarate ecclesiastical 
organization independent of Rome, with himself as 
its head. And the same purpose, it seems, was that 
which animated his daughter and successor, Eliza¬ 
beth, who eftected the permanent separation of 
England from ecclesiastical communion with Rome. 
It is a well-settled fact that neither of these two 
sovereigns gave any intellectual adhesion to the 
doctrines of the Continental Reformers. But their 
position was one too inconsistent to be maintained; 
and the practical compromise which went into effect 
in England was the continuation of the previously 
existing form of ecclesiastical organization, with the 
acceptance of a doctrinal code containing a combi¬ 
nation of the Lutheran and Calvinistic theories. 
This was the State or official church, formal adher¬ 
ence to which was sought to be enforced by severe 
penalties, directed especially against those who re¬ 
mained faithful to their ancient creed and to the 
Roman Church, but which to some extent were 
made to apply to all dissenters. 

The Calvinistic theory in its purity, however, was 
embraced by a great many persons in England; and 
Calvinism, better known in England as Presbyteri¬ 
anism, of which Puritanism was only one of the 
phases, grew strong enough, in the time of the Stu¬ 
art kings, to embrace about one-third, or perhaps 
even nearly one-half, of the Protestant population 
of the country. Many Englishmen, in the reign of 
Elizabeth, had gone over to the Netherlands to aid 
the revolted people of that country in their long 


no 


HISTORY OF THE DEVELOPMENT OF 


iiiid bitter struggle against Philip) of Spain for the 
independence of tlieir country. There they had 
imhihed tlie tenets of Calvinism and a spirit of in- 
suhordination to all authority that was not in pre¬ 
cise accordance with their views. The influence of 
the htetherlands upon England, and especially upon 
the City of Ijondon, had at all times been great. It 
did not fail of eftect at this juncture. The religious 
fermentation, the clash of Calvinism with Anglican 
Kcclesiasticisni, the al)surd and pedantic pretensions 
of the Stuarts, which were greatly worse, however, 
than their actions, the disposition of the Parliament 
to use its newly discovered and gradually increased 
power, the infusion of a large ITeshyterian element 
into that l)ody,—all these, and other cognate circum¬ 
stances, in the reign of the second monarch of the 
Stuart line, Charles I., precipitated a conflict be¬ 
tween the King of England and his Parliament 
which soon resulted in civil war, the triumph of the 
parliamentary party, and the execution of Charles 
upon the scaflbld,—an execution probably as unjus- 
tiflable as that of T^ouis XYI. of France in later 
days l)y the howling demons of the French Con¬ 
vention. Both executions undoubtedly served a 
good purpose in the cause of civil liberty by the 
rude shock which they gave to the doctrine of the 
divine right of kings; but better results could have 
been produced by more rational and moderate 
measures. The triumph of the parliamentary party 
in England for a time overthrew the monarchy, but 
it did not immediafely inure to the beneflt of civil 
liberty. On the contrary, its immediate result was 
to enable the ablest, the most unscrupulous, and the 


CONSTITUTIONAL AND CIVIL LIBERTY. Ill 


most unprincipled hypocrite that ever ruled the 
destines of a people, to grasp the power that had 
been wrested from the hands of the weak Stuart, 
and to establish and maintain for seventeen years a 
military despotism of the most galling character. 
Oliver Cromwell’s Commonwealth had even less of 
civil liberty in it than the despotic monarchy of 
Henry VIII. and Elizabeth. He and the other revo¬ 
lutionists who had contributed to the overthrow of 
the monarchy pretended a great regard for civil lib¬ 
erty ; but an intolerant military despotism was hut 
a poor realization of that pretense. They claimed 
freedom for themselves, but they opposed with fine 
and imprisonment, with banishment, and even with 
loss of life, the attempt to exercise it by others. 

The age was an age of hypocrisy and falsehood. 
Let us pass from it. 

The Htuarts were restored (a.d. 1660) only to he 
driven out again in a few years (a.d. 1688). The 
same contest was continued, only in somewhat 
modified form. James H., the fourth and last king 
of the house of Stuart, who was the victim of the new 
revolution, was impolitic, unwise, and utterly unfit 
for his position; hut he loved Civil Liberty better 
than the clique of dishonest politicians who drove 
him into exile. The lievolution of 1688, by which 
James was driven out, and his son-in-law, William 
of Orange, Stadtholder of Holland, placed on the 
English throne, was caused and conducted by some 
of the principal Whig families of the English aris¬ 
tocracy, who sought to subordinate the monarchy 
to a small oligarchy composed of themselves and 
their retainers ; and this oligarchy, in fact, continued 


112 


HISTORY OF THE DEVELOPMENT OF 


to hold control of England for nearly a century fol¬ 
lowing. It is not too much to say, what history most 
conclusively shows, that the men who successfully 
planned this Revolution were the most unmitigated 
set of scoundrels in the whole range of English 
history. And William of Orange, a man undoubtedly 
of great ability, was the worthy recipient of the 
fruits of their successful conspiracy. 

The consummation of this Revolution was sig¬ 
nalized by the enactment of a measure to which 
the name was given of a Bill of Rights, and the ao 
ceptance of which by William was made a condition of 
his appointment to the vacant throne. It has been 
greatly lauded as a declaration of sound political 
principles, as a just limitation upon monarchical 
power, as a constitutional settlement for all time of 
reliable guarantees for the preservation of English 
Civil Liberty, in fact as a second Magna Charta. A 
grosser falsehood has never been uttered. This pre¬ 
tended Bill of Rights, it is true, limited the power 
of the monarchy, and dealt in some glittering gen¬ 
eralities about the freedom of the people and Civil 
Liberty, and thereby, at all events, manifested that 
the idea of Civil Liberty had taken deeper root in 
the minds and the hearts of men; and it is no doubt 
true, also, that a certain amount of what may by 
courtesy be called constitutional government was se¬ 
cured by it for England, which the brutal stupidity of 
the Hanoverians, who soon afterwards succeeded to 
the throne, enabled the oligarchy to confirm and 
perpetuate. But a grosser violation of all just and 
honest civil right, and therefore of civil liberty, than 
this misnamed Bill of Rights, it would be difficult 


CONSTITUTIONAL AND CIVIL LIBERTY. 113 


to imagine. It was a measure of Civil Liberty pre¬ 
cisely as the farcical and yet blood-stained Common¬ 
wealth of Oliver Cromwell was a state of civil lib¬ 
erty. It was a freedom simply for the class in 
power, and disfranchisement for all others—and not 
onl}^ disfranchisement, but the most brutal penal 
laws followed upon it against all dissenters from the 
Established Church. For this time it was the Es¬ 
tablished Church that triumphed; under Oliver 
Cromwell it was Presbyterianism. 

For nearly a century after, this proscription, civil 
and religious, enforced by the severest pains and 
penalties, excluded upwards of oue-lialf, perhaps 
even as much as three-fourths, of the population of 
England from any voice whatever in the management 
of the affairs of their country, and kept that manage¬ 
ment, where the Pevolution of 1688 had placed it, in 
the hands of an oligarchic coterie, Avhich not only con¬ 
stituted the House of Lords, as they calledthemselves, 
but likewise wholly dominated the House of Com¬ 
mons, yet in its infancy, and composed in great part 
of the dependents and creatures of the great aris¬ 
tocratic families. These families controlled and 
owned the boroughs by which members of the House 
of Commons were selected ,—rotten boroughs they 
were afterwards called, in the beginning of the 
present century, when altered conditions impera¬ 
tively demanded their reformation,—and by means 
of these rotten boroughs ’’ they openly and noto¬ 
riously returned men to the House of Commons 
to do their bidding there as their retainers. It is a 
curious fact that even such men as Burke and Sheri¬ 
dan and others, at the end of the last century and 


114 


HISTORY OF THE DEVELOPMENT OF 


the beginning of the present, could not secure en¬ 
trance into the body of which they became such dis¬ 
tinguished ornaments except by the favor of members 
of the nobility, who directed their election, and at 
whose bidding they were returned, as of course, by 
the sheriffs, without reference to any constituency; 
for oftentimes there was no constituency to elect. 
It existed only in name. A more outrageous farce 
was never acted under the name of Civil Liberty. 
That Civil Liberty and substantial parliamentary 
and constitutional government were evolved from 
such fraudulent conditions was the result of circum¬ 
stances not entirely foreseen or anticipated by the 
oligarchy. 

First among these circumstances may be enu¬ 
merated the division of the oligarchy itself into 
factions, on the opposing lines of conservatism and 
liberalism, the more conservative being disposed to 
uphold monarchical prerogative, and the more lib¬ 
eral by antagonism to the monarchy being driven 
into closer relations with popular right. Then 
came the silent but all-powerful inlluence of the 
American colonization. Englishmen who desired 
a larger share of freedom than they enjoyed at 
home generally sought it in America; and many, 
with similar desires, who could not gratify them, or 
were detained at home by controlling circumstances, 
naturally put the question to themselves why they 
should not have at home the freedom which their 
expatriated brethren enjoyed in the Hew World. 
The fermentation of this question was accelerated 
by the growing intercourse between the colonists 
and their kindred at home, and was greatly increased 


CONSTITUTIONAL AND CIVIL LIBERTY. 115 


by the breaking out of the controversy which led 
to our American Revolution. 

We may notice here, in strong corroboration of 
the views which we have endeavored to express, 
that our American Revolution was not occasioned 
by monarchical oppression, but by feudal and oli¬ 
garchic tyranny as represented in the English Par¬ 
liament. We have thought proper, in our Declaration 
of Independence, to indict the stupid Hanoverian 
who then occupied the throne of England for the 
many Avrongs and oppressions which justified us, as 
we alleged, in asserting our independence. Even 
the most casual examination of the Avrongs com¬ 
plained of and of the history of the time Avill sIioav 
us beyond all question that it Avas not George III. 
Avho AA^as the aggressor, but the English Parliament; 
and that if George III. had any part or connivance 
in them—and most probably they had his sympa¬ 
thy, as they certainly had his formal concurrence— 
yet the acts Avere, in truth, the acts of the English 
Parliament, or of the Cabinet, Avhich AA^as only a 
Committee of the Parliament. Take the immediate 
cause of the Revolution, the Stamp Act, and the 
very mention of it is sufficient to show that it should 
not be charged against the king so much as against 
the Parliament A\diich enacted it. There was a 
reason, to AAffiich Ave Avill recur hereafter, for direct¬ 
ing the indictment against the king rather than 
against the Parliament; but the fact remains unaf¬ 
fected by that reason, that it Avas the Parliament, 
the organ of English oligarchy and English Feu¬ 
dalism, and not the English monarch, that drove us 
into revolution. 


116 


HISTORY OF THE DEVELOPMENT OF 


The Eigliteenth Century was closed and the Mne- 
teenth Century was opened with a contest in prog¬ 
ress the most bitter and the most sanguinary in the 
aonals of Europe since Alaric the Visigoth had 
crossed the Alps to the capture and plunder of 
Rome and the Roman Empire and the Roman Civ¬ 
ilization had fallen a prey to the I^orthern Barba¬ 
rians. I refer, of course, to the French Revolution 
and the commotions which it occasioned. 

Maddened witli excess of despotism, and cor¬ 
rupted with excess of impiety, the result of feudal 
despotism, France had arisen in the might of her 
blind rage, like Polyphemus in the old Homeric 
story, and sought to wash out in a deluge of blood 
and slaughter the crimes of the ages against hu¬ 
manity and human right. She proclaimed liberty, 
equality and fraternity, in truth the gospel of true 
democracy and the true principles of Christianity; 
but in her madness she sought to enforce the truth 
with the methods of a maniac. We condemn the 
violence and the sanguinary excesses of that move¬ 
ment; but it is now very apparent that it was neces¬ 
sary that a Napoleon should arise to break with the 
sword the power of Feudalism which had been 
reared by the sword. A second Alaric he was 
sometimes called; but his mission—for we do not 
hesitate to say that he had a mission from on high— 
was to undo the work of the first Alaric, who was 
the pioneer of Feudalism, of which the French 
Revolution and Napoleon Bonaparte were the de¬ 
stroyers. 

The English oligarchy saw its danger in the'rising 
tide of Democracy. With instinctive intuition of 


CONSTITUTIONAL AND CIVIL LIBERTY. 117 


their common origin and common cause, without 
hesitation, althougli not without protest from those 
who took a ditterent view of the revolutionary 
movement, it cast its lot with the feudal monarchies 
and with the despots of Europe. Aristocracy and 
Democracy were sharply hrought into conflict. 
Aristocracy naturally allied itself with monarchy 
and al)solutism ; and Democracy, mainly in conse¬ 
quence of its own excesses, found itself for a time 
compelled to unite its fortunes with those of a 
selflsh military adventurer. The three govern¬ 
mental principles outlined ])v Aristotle were in ac¬ 
tive and bitter contest at the beginning of the ^7ine- 
teenth Centur}'. For a time the democratic move¬ 
ment, at first triumphant, was checked by force of 
arms. It deserved the check for its excesses. It 
was not our conservative American Freedom, hut 
Freedom run mad, that then agitated Europe; and 
it was necessary that it should receive the check 
which it did, and which came singularly enough 
at Waterloo througli the instrumentality of the 
English oligarchy. 

But the oligarchs had gone too far; or rather 
liberalism, under the influence of the lesson taught 
l)y the revolutionary movement, had become hold 
enouirh and stroiii? enough to assert itself even in 
England. The reaction came. Canning, Fox and 
Sheridan, and their compeers, became sufficiently 
powerful to give a more liberal scope to English 
politics and to English legislation. It was sought 
to undo in a great measure the reactionary work 
that was accomplished in Europe after Waterloo; 
and in England itself an agitation was begun which 


118 


HISTORY OF THE DEVELOPMENT OF 


did not cease until our own day, if indeed it can be 
said to have ceased even yet, for a reform of Eng¬ 
lish Politics, and especially for a reform of the 
House of Commons—which was the designation 
given in England to the establishment of true Civil 
Liberty for the first time in that country. For, 
strange as it may seem to those who have been ac¬ 
customed to talk and write of Anglo-Saxon freedom 
as though it were a thing of immemorial existence, 
the precise date of the birth of Civil Liberty in 
England can be stated with the utmost accuracy; 
and that date was the year of the passage of the 
great Reform Bill, a.d. 1832, which gave England 
Parliaments worthy of the name, although even 
then not entirely representative of the people of 
England. Religious Liberty had been substantially 
effected three years before by the enactment of what 
are known as the Emancipation Acts. 

We will have occasion to refer again to all this 
in our further discussion of the subject in connec¬ 
tion with the general establishment of Civil Liberty 
in Europe. We call attention to it here merely to 
refute the absurd claims of those who, through ig¬ 
norance or for some worse reason, would have us 
believe that liberty always prevailed in England, 
and to show when and how that liberty w^as in truth 
established. It must be said in justice to England 
that, since its establishment, although the spirit of 
the old Feudalism in that country is not yet dead, 
the principles of Civil Liberty have been cordially 
accepted and honestly sought to be carried into 
effect. And so much is this the case that even we 
in America have some things to learn in that regard 


CONSTITUTIONAL AND CIVIL LIBERTY. 


119 


from England, with all its parade of superfluous 
monarchy and lagging Feudal state. 

We have referred to the Reform Act of 1832 as 
creating for the first time an English Parliament 
worthy of the name. We read of Parliaments ex¬ 
isting in England from a very early period; and 
there has been an absurd attempt to derive them by 
regular succession from the Witena-gemote or Gen¬ 
eral Assembly of the old Teutonic tribes. General 
assemblies have existed, and yet exist, among all 
tribes of barbarians and savages; it is only by such 
organizations that the social union of such tribes is 
maintained. In fact, it may be asserted that if 
Civil Liberty is the necessary result of tribal or 
national action in general assembly, then all barba¬ 
rians are possessed of Civil Liberty. Absolute 
monarchy has never prevailed among barbarians, 
although accommodating itself to savages. But the 
usage of barbarians to meet in general assembly we 
do not understand to he the equivalent or the source 
of orderly self-government. Certainly if there is 
any similarity or analogy of these barbarian assem¬ 
blies to the representative bodies universal under 
our modern systems of government, it is, as we 
have already stated, no more than the similarity of 
the monkey to man. Neither the Anglo-Saxons in 
England, nor the Teutonic tribes generally after 
their conquest of the Roman Empire, continued to 
maintain such assemblies. The assemblies were 
unsuited to their new conditions, and speedily gave 
place to the peculiar organization of Feudalism, and 
to absolute monarchy. 

Parliaments, it is true, were frequently called in 


120 


HISTORY OF THE DEVELOPMENT OF 


the former days in England, but not to deliberate, 
not to make laws, not even to suggest legislation. 
In the Anglo-Saxon days in England, and under 
the Norman and Plantagenet kings, the work of 
making laws, as well as that of administering and 
executing them, was exclusively the province of the 
sovereign; and if the sovereign ever called his 
chiefs and nobles around him in connection with 
the work of legislation or administration, it was 
solely for the purpose of procuring their advice. 
In his transactions with the clergy and the Church 
it was somewhat different; for there he was dealing 
with a different order of things, and an independent 
or semi-independent authority, which oftentimes 
defied him. The Parliaments, if we choose by 
courtesy to give them that name, were called 
merely to supply the sovereign with the “ aids ” 
or “ subsidies,” which were the equivalent in those 
rude days of the taxes which are now imposed for 
the support of government. And the prevalence 
of such methods for the raising of revenue, instead 
of demonstrating the existence of any measure of 
Civil Liberty, evidences rather the absence of any 
just or uniform system of taxation and the exist¬ 
ence of a condition of rudeness not far removed 
from the primeval barbarism. Such Parliaments 
were in truth parleys from time to time between 
the general of the army, on the one side, and the 
chiefs and nobles, the tributary cities, and the pos¬ 
sessors of wealth, on the other side, as to the amount 
of money or service which they would render to the 
general as the condition of protection from pillage. 
Then, in consideration of the money or service so 


CONSTITUTIONAL AND CIVIL LIBERTY. 


121 


to be rendered, the persons assembled in parliament 
would occasionally presume to petition the king for 
a redress of any grievances under which they claimed 
to suffer by the manner of the administration of his 
government. If these petitions were granted by the 
king, he would usually so announce by way of a 
statute framed for the purpose. To call these stat¬ 
utes acts of parliament is a gross misnomer. They 
do not themselves purport to be anything of the 
kind, but only acts of the king in parliament. 

If no statute was passed, the king would usually 
in any event promise to take the matter into con¬ 
sideration. And as there seems never to have been 
a parliament which did not have grievances to be 
redressed, we have a rather accurate gauge of the 
utter worthlessness and falsity of these royal prom¬ 
ises, which seem to have been made only to be 
broken as soon as the required aids and subsidies 
had been furnished. 

Such were the so-called Parliaments which we 
are told were called in the days of the N^orrnan, 
Plantagenet, and Tudor Kings. It would be a gross 
perversion of the truth to attempt to liken them to 
our modern deliberative assemblies. The best that 
can be said of them is that they afforded a basis 
for the organization of deliberative assemblies, that 
could legislate as well as petition; and that they 
may possibly be supposed to have given rise to the 
modern idea that these deliberative assemblies, and 
not the monarch, should have control of the purse 
and of the national finances. 

Once, and once only, in all the course of English 
history before the accession of the Stuarts, was 


122 


HISTORY OF THE DEVELOPMENT OF 


there a parliament assembled in England that could 
be called a truly representative body, authorized to 
legislate for the general good of the country; and 
that was by the agency and through the influence, 
not of any Englishman or body of Englishmen, but 
of a French adventurer, Simon De Montfort, a 
member of a family famous in French history, and 
who had come to England to seek his fortunes there 
in the reign of King Henry III. (a.d. 1216-1272), 
son and successor of King John, who had signed 
the Magna Charta. I)e Montfort’s abilities brought 
him into notice and power at court. He was made 
Earl of Leicester, and for a considerable time con¬ 
trolled the policy of England. Having been driven 
into opposition, he became the chief of a faction 
hostile to the court party. Civil war broke out, 
and Henry was defeated and taken prisoner at the 
battle of Evesham by He Montfort, and was there¬ 
upon compelled by the latter to summon a parlia¬ 
ment to take into consideration and to settle the 
affairs of the realm. Henry was as irresolute and 
unprincipled as his father John. Indeed he is enti¬ 
tled to contest with John the bad pre-eminence of 
being the worst monarch in English history. He 
had sworn repeatedly—we believe that history states 
as often as eleven times—to support and maintain 
the provisions of Magna Charta, and he had as 
repeatedly violated his oath. Ko reliance whatever 
could be placed upon his promises, and a general 
convocation of the estates of the realm was deemed 
necessary by He Montfort to assure some kind of 
guaranty for the observance of the royal engage¬ 
ments. Thereupon a Parliament was called in the 


CONSTITUTIONAL AND CIVIL LIBERTY. 123 


same year as the battle of Evesham, a.d. 1264, and 
was held at London in January of 1265. 

This Parliament included not only the great 
barons and the bishops, but likewise deputies from 
all the towns and boroughs of England; and it was 
as nearly a representative body of all the estates of 
England at the time as the circumstances would 
probably permit. It was not called to pay enforced 
tribute to a needy or reckless monarch, but to de¬ 
liberate upon the affairs of the country, and to adopt 
measures for their settlement. It was a parliament 
in the true sense of the term; and it was the work 
of a Frenchman. But it had no predecessor;- nor 
nor had it any successor before the days of the 
Stuarts. It was only in the reign of James I., the 
first sovereign of the House of Stuart, that the par¬ 
liament of England became a really deliberative 
body and participated in the enactment of laws. 
This was the result in a great measure of the cir¬ 
cumstances under which James came to the throne, 
and of the fact that he was a foreigner, and uncer¬ 
tain of his hold upon England ; and yet, as we 
have seen, the consummation was not reached with¬ 
out a sharp struggle in his own reign and in that of 
his son and successor Charles I. In fact, it was 
not until the Revolution of 1688, by which James 
II. was expelled, that the power and position of 
Parliament and its functions in the State were fully 
and finally confirmed. If that Revolution contrib¬ 
uted anything whatever to the cause of Civil Lib¬ 
erty, its contribution consisted in the establishment 
of the power of the Parliament and of its indepen¬ 
dency of the monarchy. The Parliament so estab- 


124 


HISTORY OF THE DEVELOPMENT OF 


lislied, it is true, as we have already stated, was not 
a truly representative body, but the corrupt organ 
of a corrupt and unprincipled oligarchy. It had 
the merit merely of the possibility of being trans¬ 
formed into a really representative body, and the 
transformation was finally effected in the present 
century. 

The history of the Parliament of England, there¬ 
fore, for our present purpose, may be summed up 
in this statement—that from early days there ex¬ 
isted a method of levying contributions upon the 
country which was capable of being made to sub¬ 
serve a greatly more important purpose, that of de¬ 
termining the mode in which the money so raised 
should be expended; but that this capability was 
not realized in fact until the time of the Stuarts, 
nor fully until the present century: further, that 
parliaments existed from early days, but no parlia¬ 
ment before a.d. 1832, in our sense of that word, 
except the parliament of De Montfort in a.d. 1264, 
an interval of more than five hundred years before. 

There is another institution, usually claimed to 
be English or Anglo-Saxon, which cannot be passed 
unnoticed in any treatise upon Civil Liberty in 
England. This is the system of Trial by Jury, 
which its admirers and the admirers of the so-called 
English Constitution sometimes rather extravagantly 
claim to be the palladium, as they call it, of Eng¬ 
lish liberty. 

The system of trial by jury is not of Anglo-Saxon 
origin. It was simply adopted by England from the 
institutions of the Franks. This has been conclu¬ 
sively shown, and is no longer a matter of contro- 


CONSTITUTIONAL AND CIVIL LIBERTY. 125 


versy. Let it suffice that England has appropriated 
it, as she has appropriated a great many other 
things without giving due credit for them, but has 
made most liberal and practical use of the appro¬ 
priation. 

The independence of the judiciary under our 
American Constitutional system we regard as one 
of the very best features, perhaps the very best, of 
all our guarantees of Civil Liberty. The English 
Judiciary is not, and never has been, an independ¬ 
ent branch of government. On the contrary, it has 
always been the creature of the executive power,— 
although it is very greatly to its credit that, with 
comparatively rare exceptions, it has always dis¬ 
charged its functions with a degree of fearlessness 
and practical independence greatly at variance with 
its theoretical position in the State, for its theo¬ 
retical position is that of entire dependence on the 
sovereign. The courts were the king’s courts. 
The king appointed and could remove the judges 
at pleasure. The king himself could sit in the 
courts; and James I., a monarch of education and 
with some knowledge of the law, although with 
greater pretensions than his acquirements justified, 
for which he was once called l)y a witty Frenchman 

the wisest of the fools of Europe,” once actually did 
attempt to sit in the court known as that of King’s 
Bench, greatly to the disgust of the Chief Justice, 
the celebrated Sir Edward Coke. Even yet the 
theory is maintained of appointment and removal 
of the judges at the royal pleasure, and the Parlia¬ 
ment is presumed to have no voice in the matter. 
But as all such appointments are now made by the 


126 


HISTORY OF THE DEVELOPMENT OF 


Cabinet, which is only a Committee of the Parlia¬ 
ment, and the tenure of judicial office is now by 
long usage for good behavior, which is construed to 
be for life, the practice establishes a wholly differ¬ 
ent condition from the theory. 

But in the days when the theory possessed more 
of vitality than it does now, the introduction of such 
an element as trial by jury into the judicial system 
may well be assumed to have interposed a substan¬ 
tial check to the power of the sovereign to dispose 
arbitrarily of the lives, liberty and property of his 
subjects. It is not apparent that, in civil contro¬ 
versies between individuals regarding their rights 
of property, the cause of civil liberty could have 
been greatly affected one way or another, whether 
the arbitrament of such controversies was by a judge 
who owed his appointment to the king, or by the 
coml)ined and co-ordinate action of such a judge 
and a jury summoned according to his own good 
will and pleasure by a sheriff Avho equally owed his 
appointment to the king. And except for the voice 
which this system theoretically gave to the people 
in the administration of justice and the general in¬ 
terest which they necessarily had that justice should 
be impartially administered, it would seem to be 
wholly indifferent, so far as the cause of civil liberty 
was concerned, whether the determination of civil 
controversies should be by a judge alone, or by a 
jury alone, or by the peculiar system actually in 
vogue which requires the co-ordinate action of a 
judge and jury. 

It is very different, however, in criminal cases, 
and in all cases to which the king, embodying the 


CONSTITUTIONAL AND CIVIL LIBERTY. 


127 


power of the State, was a party, especially in the 
matter of offenses of a political character. Here, 
if anywhere, the system of trial by jury might well 
be supposed to interpose a barrier to the exercise of 
arbitrary power and to afford a reasonable safeguard 
to the freedom of the individual. Here it was that 
Magna Charta was especially intended to apply—at 
least, so it is claimed—when it provided that no 
freeman should be disseised of his land, impris¬ 
oned, or condemned except by judgment of his 
peers, or by law. But in fact, it is shown conclu¬ 
sively by the whole tenor of English history that, 
prior to the time of the Stuarts, the system of trial 
by jury served no such beneficial purpose ; and it is 
not apparent how, when the sheriff's, who had the 
exclusive selection of the juries at their own pleas¬ 
ure, had their appointments from the court, and re¬ 
ceived such appointments from year to year at the 
pleasure of the sovereign, the system could by any 
possibility serve the cause of civil liberty. When 
we remember, further, that the provision in Magna 
Charta was specifically limited to the protection of 
the freemen ” who were at the time but a compara¬ 
tively small part of the people, and that the seifs 
and villeins, who were the larger part of the people, 
were excluded from its benefits; and when we re¬ 
member, also, as far even as the freemen were con¬ 
cerned, how easy it was for the kings to procure 
bills of attainder for political ofienses from subser¬ 
vient Parliaments, and how easy it was to procure 
the assembling of subservient Parliaments, this 
whole pretense of the vast civil liberty enjoyed by 
Englishmen in consequence of the existence of the 


128 


HISTORY OF THE DEVELOPMENT OF 


system of trial by jury becomes a ludicrous farce. 
The facility with which the rival Houses of York 
and Lancaster, and subsequently the monarchs of tlie 
Tudor line, procured Parliaments to attaint their 
opponents, to disseise them of their estates, to im¬ 
prison, condemn, or banish them, is a fact which the 
most casual reader of English history cannot fail to 
learn. We never hear or read of any case before 
the time of the Stuarts where the monarch was 
balked by the system of trial by jury in the prose¬ 
cution or persecution of any person whom it Avas 
desired by the monarch or his favorites to condemn. 
The Tower of London was always open to the ad¬ 
mission of the proscribed; and if the system of trial 
by jury was permitted to have its course with ordi- 
dinary offenders in Avhom the court or monarch Ijad 
no interest, it Avas not for any regard for the prin¬ 
ciples of Civil Liberty, but simply because it Avas 
necessary to have some method of legal procedure 
in such cases. 

It is absurd to speak of trial by jury as having 
secured ciAul liberty in the times of the Plantage- 
nets and Tudors. It had no such result, and the 
system Avas dispensed Avith Avhenever it suited the 
purposes of the kings to have recourse to other and 
more arbitrary methods. Both the system of trial 
by jury and the system of Parliaments coiiAmned as 
deliberative bodies commenced to have practical ex¬ 
istence and substantial Autality in the days of the 
Stuarts; and the two centuries subsequent to the 
accession of that familv to the throne of England 

t/ O 

Avere consumed in a contest for the establishment of 
both, in Avhich the true principles of cIauI liberty 
were sadly disregarded by all parties. 


CONSTITUTIONAL AND CIVIL LIBERTY. 


129 


It is the evident conclusion that, notwithstanding 
Magna Charta, notwithstanding De Montfort’s Par¬ 
liament of A.D. 1264, notwithstanding the initiation 
of the contest for freedom under the Stuarts, not¬ 
withstanding the Pevolution of 1688 and the 
boasted Bill of Eights, true Civil Liberty was not 
developed in England until towards the end of the 
Eighteenth Century and did not receive formal 
shape and legal recognition until the first part of 
the nineteenth Century, and even then not so much 
as the result of the development of existing institu¬ 
tions as in consequence of the operation of extra¬ 
neous infiuences, notably those of our American 
Revolution and those of the French Revolution. 
But, while we deny to England her absurd claim to 
the possession of free institutions from a time, to 
use her oavu favorite legal expression, “ whereof the 
memory of man runneth not to the contrary,” we 
should do her the justice to say that, in the brief 
time during which she has really had such institu¬ 
tions, her development of them has been had with 
wonderful rapidity, and her example on the whole 
has had a beneficial influence on the nations of 
Europe and on the progress of civilization through¬ 
out the world. For her shortcomings and her 
crimes against justice and humanity it would be 
easy to draw up a formidable indictment; but for 
the good that she has done let us give her credit. 


9 


130 


HISTORY OF THE DEVELOPMENT OF 


LECTURE V. 

THE DEVELOPMENT OF CIVIL LIBERTY IN AMERICA. 

Let us now turn to the land where, as we Hatter 
ourselves, Divine Providence decreed that modern 
Civil Liberty should have its birth and its best de¬ 
velopment, in pursuance of the wonderful exploit of 
Christopher Columbus and the new era which that 
exploit inaugurated. 

At the time of the Discovery, Spain and Portugal 
were among the foremost nations of Europe in com¬ 
mercial enterprise, in the honors of which they 
shared with the republican cities of Venice and 
(lenoa; and it is not improper to remark that Eng¬ 
land at the same period was the most backward and 
the least enterprising of the nations of Europe. 
It was natural that the compatriots of the great 
navigator and the adventurous spirits of the Pierian 
Peninsula, Hushed with their recent successes against 
the Moors, should be the Hrst to Hock to the New 
AVorld in the work of exploration and colonization. 
They were not all adventurers, hungry for gold, 
who forever sought an Eldorado that forever evaded 
them, like the mirage of the desert. With the con¬ 
querors that overran Mexico and Peru with Cortez 
and IHzarro, or in their wake, came also honest col¬ 
onists seeking freedom and ha[)])iness; and it may 
be a revelation to those who have derived all their 
knowledge from the ignorant impostors who have 


CONSTITUTIONAL AND CIVIL LIBERTY. 131 


written school histories for England and the United 
States, to be told that free institutions were first 
established on this Continent, not on the coast of 
Massaclmsetts Bay, nor on the waters of ITarragan- 
sett, nor even on the shores of the Chesapeake, hut 
on the banks of the Rio T)e La Plata and within the 
shadow of the Cordilleras of the Andes; and that 
the era of their estahlishment was the reign of the 
Emperor Charles V. of Germany and Spain, the 
ablest and the most enlightened monarch of his age 
(a.i). 1519-1556), the grandson and practically the 
immediate successor of Ferdinand and Isabella. 
The Provinces that have now become the Argentine 
Republic Avere established under a constitutional 
system of government that even at this day does 
credit to the sagacity and liberality of the monarch ; 
and in fact all his arrangements for the government 
of the American ITovinces show a degree of liber¬ 
alism and enlightenment not unworthy of the R^ine- 
teenth Century. If his wise plans to a great extent 
failed of efiect under his more despotic and less 
capable successors, that tact should not deprive him 
of the credit Avhich is justly his due for the benefi¬ 
cent foundation which he eftected and which Avas 
never entirely OA^erthroAvn.* 

It is greatly to be regretted that a man generally so fair and 
impartial as the present Manpiis of Dnlferin and Ava, in a re¬ 
cent speech in reference to a celebration of the 400th anniversary 
of the voyage of John and Sebastian Cabot, should contrast that 
voyage with that of Columbus in terms unfavorable to the latter, 
by the statement in substance that, lurking in the hold of the Santa 
Maria and the Pinta were the Inquisition, rapine, and misery to 
America, while the Cabots were the pioneers of civilization. The 
bigotry and ignorance which characterize this statement, both 
eipially gross, are, in fact, only the reflex of common English and 



132 


HISTORY OF THE DEVELOPMENT OF 


]^or should we ignore, in this connection, the estab¬ 
lishment hy the Jesuits (a.d. 1690) of the famous 
patriarchal Kepiiblic of Paraguay, a republic based 
upon the principles of Christian Socialism, the only 
successful organization of the kind that e\'er exist¬ 
ed, an organization that excited the admiration of 
scholars and statesmen throughout the civilized 
world, and which only failed when the order of the 
Jesuits was suppressed by an Anti-Christian con¬ 
spiracy throughout the Spanish dominions (a.d. 
1768).*^ 

But our subject leads us, not so much to what the 
Spaniards did in America, however important that 
was, as to what the English did. 

The Spaniards had been active for a hundred 
years in America before England began to move at 
all in the work of colonization. The Portuguese 
had settled in Brazil, and even the French had ap¬ 
peared on the Saint Lawrence and on the Missis¬ 
sippi before the English began to move. While the 
voyage of the Cabots followed within a few years 
that of Columbus (a.d. 1497), and constituted the 
foundation of the claim of England to the shores of 
the regions of North America, along which it ex¬ 
tended, yet neither Henry VII., who had authorized 


American sentiment on the subject. The answer to all this, and 
to other unfounded statements of a similar cliaracter, is that the 
English Civilization in America, like all Anglo-Saxon Civilization 
(or barbarism) everywhere, has resulted in the extermination of 
the native population, while the Spanish conquest preserved and 
perpetuated the natives, and has left them at this day a large 
majority of the population. Which was the more humane cause? 
Perhaps the Anglo-Saxon ; but it would be the part of decency not 
to avow it in this age of the world. 




CONSTITUTIONAL AND CIVIL LIBERTY. 133 


the Cabots to proceed upon their voyage, nor any of 
the three subsequent monarchs of the Tudor line, 
Henry VIII., Edward VI., and Queen Mary, fol¬ 
lowed up the enterprise by any attempt to take pos¬ 
session of any part of the American Continent. 
They were all too busy with the religious and intes¬ 
tine troubles of England to take part in foreign col¬ 
onization ; and, as we have stated, the policy of 
England at this time, and during the whole Tudor 
period, was hostile to foreign colonization, to foreign 
commerce, and to the withdrawal of any Englishman 
from England without special license from the sov¬ 
ereign, a policy which was enforced by divers acts of 
Parliament under severe penalties, which, strange as 
it may seem, have never been formally repealed, al¬ 
though of course they have long since fallen into 
desuetude. They form a striking commentary on 
England’s boast of Civil Liberty as of immemorial 
existence. 

In fact, during the days of the Tudors, England 
had no foreign commerce worth mentioning. Such 
commerce as there was at the time was in the hands 
of the Venetians, the Lombards, and the merchants 
of the Netherlands and of the Cities of the Hanse¬ 
atic League. London, although even then a great 
commercial City, was not much more than a mere 
depot for the merchandise brought there by the 
merchants of other nations. The carrying trade 
was done by those merchants, not by the citizens of 
London; and in Bristol, the second great commer¬ 
cial city of the country, the conditions were not sub¬ 
stantially different. The cause of this backwardness 
it is not difficult to discover. Apart from the foolish 


134 


HISTORY OF THE DEVELOPMENT OF 


and barbarous policy of isolation, to which reference 
has already been made, it was unfortunate for Eng¬ 
land that, when the Wars of the Roses had come to 
an end by the death of Richard III. on the held ot 
Bosworth and the dynastic troubles which had agi¬ 
tated the country had been composed by tlie acces¬ 
sion of Henry Tudor to the throne, and a breathing- 
spell might have been anticii)ated for the recovery 
of wasted energies, the troubles of the Reformation 
came, witli its disgraceful persecutions, to retard 
the development of the country for two centu¬ 
ries. 

It is true, however, that in the reign of Elizabeth, 
the last of the Tudors, there was a rather remarka- 
hle maritime activity developed in England. We 
use the expression maritime advisedly, rather than 
the word commercial. For the activity to which 
England then betook itself was simply that of 
piracy. Drake and Frolusher and Amyas Leigh 
and Walter Raleigh and their associates did not call 
their pursuit by that name; but that is what it was, 
and that is the name by whicli, if we would be 
truthful, we must call it at the present day. Their 
occupation was, with the sovereign’s secret consent 
and with the sovereign’s secret participation in the 
spoils of their nefarious enterprises, to depredate on 
the commerce of Spain, with which country their 
sovereign for most of the time Avas outwardly at 
peace, to plunder the Spanish galleys laden with 
gold from America for Spain, and to sack and rav¬ 
age the Spanish Cities on the coasts of the Carib¬ 
bean Sea. But it is presumed that Raleigh at last, 
Avho was undoubtedly the most capable man of them 


CONSTITUTIONAL AND CIVIL LIBERTY. 135 


all, finding perhaps that piracy had its dangers and 
its limitations, turned his attention in good faith to¬ 
wards the colonization of such portions of the 
Northern Continent of America as had not been 
appropriated by Spain or France. The suspicion, 
however, has been frequently indulged and freely 
expressed, that although he turned his attention to 
the apparently new enterprise and the more honest 
effort of colonization, instead of piracy, the new en¬ 
terprise was in reality no more than a blind for the 
further prosecution of his piratical raids upon Span¬ 
ish commerce, for which an English colony on the 
American coast would have afibrded him a better 
base of operations. For this suspicion there is 
countenance given by the fact of his subsequent 
arrest and imprisonment, and finally his execution, 
by the order of James I., who must be credited 
with more regard for international law and human 
right than even the blindest partiality of partisan¬ 
ship can attribute to one Avho has been denominated 
the Queen of Pirates,” and who seems to have 
fairly deserved the title, Elizabeth Tudor. 

At all events, whatever may have been Raleigh’s 
motive, he solicited and received, in a.d. 1584, a 
concession from Elizabeth to engage in trade with 
America and to plant a colony in that country. The 
first vessel fitted out by him sailed to the coast of 
Virginia, the name given to all that portion of the 
Continent claimed by England in consequence of 
the voyage of the Cabots; and a settlement was 
effected on Roanoke Island, off the shore of what 
is now our State of North Carolina. This voyage 
was followed by four or five others; but the enter- 


136 


HISTORY OF THE DEVELOPMENT OF 


prise was without result. The colony either per¬ 
ished, or was abandoned, not without some circum¬ 
stances of mystery that tend to warrant the suspi¬ 
cion of the genuineness of the settlement; and all 
further attempt for the colonization of America was 
abandoned during the reign of Elizabeth. The 
charter or concession granted by Elizabeth to Ra¬ 
leigh, and which is yet extant, does not appear to 
merit that it should be regarded as an honest effort 
in the direction of English colonization in the New 
World. 

A new era began with the accession of the house 
of Stuart to the throne of England, in the person 
of James L, a.d. 1603. An end was put by that 
monarch to the systematic depredation by the Eng¬ 
lish pirates upon the Spanish commerce, and the 
attention of Englishmen was turned in good faith 
towards the work of the colonization of America 
and the opening of commerce with the New World. 

We have already referred to the fact that the 
Stuart dynasty has passed into English history, so 
called, as the embodiment of arbitrary and tyrannical 
government; and we have no desire to defend the 
memory of the monarchs of that line from the sub¬ 
stantial charges against them taken simply as indict¬ 
ments of their personal conduct. But when we 
come to compare the conduct of the Stuarts with 
that of their predecessors, the Tudors and the Plan- 
tagenets, or even with that of their stupid and boor¬ 
ish successors, the Hanoverians, the charges, as indi¬ 
cating that the Stuarts were exceptionally arbitrary 
in government, is simply an atrocious calumny. 
They were inhnitely better in every way than either 


CONSTITUTIONAL AND CIVIL LIBERTY. 137 


their predecessors or successors. It was their mis¬ 
fortune to suffer vicariously for the crimes of the 
Tudors, as it was the misfortune afterwards of Louis 
XYI. of France to suffer for the accumulated crimes 
of three centuries of Bourhonism. Again we de¬ 
sire to say that We do not wish to defend the Stu¬ 
arts ; hut we do say that it is a falsification of his¬ 
tory to seek to depreciate them to the advantage of 
the Tudors and the Hanoverians. 

America, at all events, owes a debt of gratitude 
to the Stuarts, which it owes to no Tudors or Hano¬ 
verians, and to no English Parliament. For to 
them we owe all the charters granted for the estab¬ 
lishment of our American colonies, except the last, 
that of Georgia, which was only a reduplication of 
its predecessors, and from these charters we have 
raised the stately edifice of American Civil Liberty. 
For these charters we have to thank no English 
Parliament: the English Parliaments always antag¬ 
onized and sought to curtail them. For these char¬ 
ters, and for all that they meant and involved, we 
have to thank alone the monarchs of the House of 
Stuart, and their enlightened liberality, strange as 
that term may seem in connection with the House 
of Stuart. To a consideration of these charters, 
and of their meaning, purpose, and result, we have 
now to address ourselves. 

Charters for the incorporation of municipalities 
and for the formation of guilds and commercial 
societies were a peculiar feature of the Boman Civil 
Law; and all the municipal organizations of the 
Roman Empire, which survived the irruption of the 
northern Barbarians, had been effected under char- 


138 


HISTORY OF THE DEVELOPMENT OF 


ters emanating from the Roman Senate. These 
charters were grants of powers and privileges, en¬ 
titling the cities and associations which received 
them to act for themselves and to make their own 
rules and regulations for their own self-government, 
substantially such as are our charters and acts of 
incorporation to-day: for in these we have not 
originated anything; we have only revived the old 
Roman methods of organization. Those methods 
were antagonistic to the usages of the ITorthern 
Barbarians, who found in them the greatest obstacle 
to the establishment of their Feudal System; and 
they were antagonistic to the spirit of the Common 
Law of England, the child of Feudalism. Under 
that Common Law we find them to have been fre¬ 
quently branded with the odious name of monopo¬ 
lies;—although, so far as the Cities were concerned. 
Feudalism had found itself even at a very early day 
compelled to come to terms with them and to recog¬ 
nize their chartered rights. We have seen that the 
City of London, in the time of King John, had 
become poAverful enough to have its chartered rights 
recognized and confirmed in the Magna Charta. 
And we know that it was in the Cities, with their 
charters of Roman origin, that the spirit of Roman 
Civil Liberty was preserved amid the overwhelming 
deluge of the Northern Barbarism. 

The Stuart sovereigns, whatever else may be said 
of them, were men of education, which few of their 
predecessors and none of their successors could 
claim to be. They came from a land where the 
Roman Civil Jurisprudence, introduced there from 
France, had long been in force. They were favor- 


CONSTITUTIONAL AND CIVIL LIBERTY. 139 


able to the extension of that Jurisprudence in 
England, as they several times manifested, and nota¬ 
bly on one memorable occasion, when the jurisdic¬ 
tion of the Courts of Common Law, representing 
the Feudal principle, and the jurisdiction of the 
Court of Chancery or Equity, representing the prin¬ 
ciples of the Roman Jurisprudence, came into sharp 
conflict under the leadership respectively of those 
two most famous men of law. Sir Edward Coke and 
Francis Lord Bacon, and the contest became so bit¬ 
ter that it was referred to the King, James I., for 
his arbitrament, and, fortunately for the cause of 
humanity and of civilization, the Court of Equity 
and Lord Bacon triumphed, and that most learned, 
and at the same time most narrow-minded and big¬ 
oted champion of the feudal principle and of feudal 
barbarism. Sir Edward Coke, went into retirement. 
The King’s knowledge of the Roman Jurisprudence 
had enabled him to decide the controversy in ac¬ 
cordance with right and justice. 

The system of charters, common under the Roman 
Jurisprudence, and of which England had to some 
extent an object-lesson in the Charter of the City 
of London, James I. found to be a convenient 
method for the development of the commerce ot 
England, then in its infancy; and possibly also as 
a convenient mode for the reward of services ren¬ 
dered to himself or to the State. The charters 
granted by bim and his successors for the establish¬ 
ment of the American colonies were concessions 
in the interest of trade and commerce, although 
exclusive of all right other than that of the grant¬ 
ees, together with donations of land in the Kew 


140 


HISTORY OF THE DEVELOPMENT OF 


World for their benefit and for the benefit of such 
colonists as they might induce to settle there and 
to whom they might subdivide the land. They in¬ 
cluded a general concession to Englishmen to emi¬ 
grate to the 'New World, which concession was 
made in pursuance of the statutes to which refer¬ 
ence has heretofore been made, which absolutely 
prohibited all emigration from the country, except 
by special license from the King; but it had the 
practical effect of nullifying all such statutes in favor 
of those who would go to America. 

With these charters and concessions Parliament 
had nothing to do. The Parliament was not yet 
strong enough to arrogate to itself any right to in¬ 
tervene in them actively, although it did not fail, 
with the instincts and the prejudices of Feudalism 
which it continued to represent, to endeavor to limit 
and hamper the scope of their operation. Before 
the present century and down to the year 1837, 
when Parliament finally took control of the whole 
subject, it was the theory of the English law that all 
charters emanated from the sovereign alone. With 
us in America, even from the earliest colonial times, 
the theory always has been different, and charters 
have never been granted except by legislative au¬ 
thority. But in England, as we have stated, down 
to the year 1837, they always emanated from the 
sovereign. And so it was with the charters under 
which our American colonies were established. 
We think that we are entirely safe in asserting 
that, if it had depended upon the English Parlia¬ 
ment, no such charters would ever have been 
granted. And we think that we are further war- 


CONSTITUTIONAL AND CIVIL LIBERTY. 


141 


ranted by the facts of history in asserting that, of 
the growth of Civil Liberty in America and of the 
institutions which contributed to that growth, not 
the sovereigns but the Parliaments of England were 
the most bitter and the most persistent enemies. 

The charters granted for the establishment of onr 
American colonies were mainly based on the Char¬ 
ter of the City of London ; and we may add that the 
theory of the English Common Law adopted by our 
colonists was likewise, in the main, the modified 
theory of that Law in force in the same City. When 
it became in good faith the policy of the English 
Government to attempt to colonize America and to 
open commerce with it, instead of depredating upon 
the Spanish commerce and plundering the Spanish 
colonies, the most prominent men in England 
sought to identify themselves with it, and compa¬ 
nies were formed in London and Bristol, under the 
names of the Virginia Company and the 'New Eng¬ 
land Company, comprising among others the prin¬ 
cipal noblemen of the realm, for the purpose of pro¬ 
moting the scheme of American colonization. But 
it is to be noticed that the noblemen soon dropped 
out of the enterprise: America had no Eldorado 
for them at that time; and when this fact was de¬ 
veloped, as it very soon was, the enterprise ceased 
to interest them. The work of colonization involved 
toil and danger, and little immediate or even pros¬ 
pective emolument. The colonists themselves in¬ 
cluded none of the feudal classes in their number. 
The feudal classes of England were no more eager 
than their brethren on the Continent of Europe to 
earn their living by honest toil. War and plunder 


142 


HISTORY OF THE DEVELOPMENT OF 


and rapine had 2 ^iven them birth, and had sustained 
them in their ill-gotten power and wealth ; they were 
not fitted to reclaim the virgin forests of the West¬ 
ern World to civilization. Many of them appeared 
as grantees in the charters; very few of them came 
to America; and fortunately none remained. It 
might he well for us if none of them came now. 
The air of America was not congenial to the propa¬ 
gation of feudal institutions. The titled men who 
were in the enterprise were in it merely for gain; 
and when it became established that there was no 
great gain to be had from it, they^ abandoned it. 
Those who entered into it in good faith and in 
earnest were those who desired to escape from the 
conditions by which they were environed in Eng¬ 
land ; they were exiles, voluntary or involuntary^ 
from their native land, who sought to better their 
condition in a new country and a new home. 

Thirteen colonies, as we know, were planted by 
England upon our North American shores, and all 
hut one under charters granted by the Stuart kings. 
There were, in fact, upwards of twenty different 
charters. There were three successive grants for 
the Colony of Virginia, in 1606, 1609, and 1612 ; 
two concurrent charters for Massachusetts, in which 
two separate colonies, Plymouth and Massachusetts 
Bay, were established, which were afterwards con¬ 
solidated ; and two concurrent charters for Bhode 
Island, where there were also two separate colonies 
planted, Rhode Island and Providence Plantations. 
For New York there were two successive charters, 
one issued in 1664 and the other in 1674; and three 
separate colonies, under one paramount charter. 


CONSTITUTIONAL AND CIVIL LIBERTY. 143 


were founded in 'New Jersey, one designated by 
that name, one by the name of West Jersey, and 
one by the name of South Jersey. Similarly both 
hTorth and South Carolina, although settled as 
separate colonies, passed under one grant. New 
York and New Jersey had also been originally in¬ 
cluded in one grant by King Charles II. to his 
brother James, Duke of York; bnt they were soon 
separated by the latter. Pennsylvania and Dela¬ 
ware were originally one, and passed under a grant 
from James II. to William Penn; althongh Dela¬ 
ware received a separate colonial organization from 
Penn in a.d. 1701. 

The charters for Virginia, Massachnsetts, Rhode 
Island, and Providence Plantations, Connecticnt, 
and Georgia, were granted to organized companies, 
such as at this day we wonld designate by the name 
of corporations; while the charters for New Hamp¬ 
shire, Maryland, the Carolinas, New York, New 
Jersey, Pennsylvania and Delaware, were granted to 
individuals, or to associations of two or more indi¬ 
viduals, not incorporated. The grantees in the lat¬ 
ter category have generally been designated as lords 
proprietors, and their colonial organizations as pro¬ 
prietary governments. In course of time, all the 
organized companies, finding no profit in their en¬ 
terprise, surrendered to the Crown their proprietary 
rights under their charters, as did likewise several 
of the lords proprietors. These proprietary rights, 
at the time of their surrender, consisted mainly of 
the power to nominate the governors of the colonies 
and the members of their councils. The colonies, 
where the rights of the companies or the lords pro- 


144 


HISTORY OF THE DEVELOPMENT OF 


prietors were so surrendered, became and were 
thereafter called Crown colonies; and they com¬ 
prised ten of the thirteen colonies existing at the 
time of our Declaration of Independence. Penn¬ 
sylvania, Delaware and Maryland continued to be 
“ proprietary colonies ” during the whole colonial 
period, and their governors and councils continued 
to be appointed by their respective lords proprie¬ 
tors, while elsewhere those officers received their 
appointments and commissions from the King of 
England. 

But it is a peculiar fact that, in all the thirteen 
colonies, however established, and whether they be¬ 
came Crown colonies or remained under proprietary 
government, the civil institutions introduced were 
substantially the same. These institutions were 
generally outlined, although no more than outlined, 
in the charters. The charters, reserving a general 
dependence of the colonies on the sovereign of Eng¬ 
land, gave to the grantees in them, whether organ¬ 
ized companies or lords proprietors, the right to 
make all proper rules and regulations for the gov¬ 
ernment of their respective colonies not inconsist¬ 
ent with the laws of England; and it was always 
distinctly understood, even when not expressly pro¬ 
vided, that, subject to the proprietary rights of the 
companies, or of the Crown, and the lords proprie¬ 
tors, the colonists should have the right to select 
their own colonial assemblies, and therein to make 
their own laws and provide for such further colo¬ 
nial organization as they might deem necessary or 
proper for their condition. And it may be proper 
to note here that, as between the Crown colonies 


CONSTITUTIONAL AND CIVIL LIBERTY. 145 


and the proprietary colonies, there was no substan¬ 
tial difference of colonial organization or civil or so¬ 
cial condition developed, other than the possibly 
somewhat unexpected difference of greater civil and 
religious liberty in the proprietary colonies, due, no 
doubt, not to the fact that these were proprietary 
colonies, but to the more important fact that the pro¬ 
prietors of Pennsylvania, Delaware and Maryland 
were always men of liberal and enlightened views, 
and had invariably sought to maintain, in the man¬ 
agement of their colonies, the principles of civil and 
religious liberty upon which they had been founded. 

The charters granted for the establishment of the 
American Colonies were, in substance, charters of 
incorporation of the colonists themselves, by which 
they were authorized to manage their own affairs in 
their own way, but in subordination to the sov¬ 
ereignty of the King of England, and in a manner 
not inconsistent with the laws of England—the last, 
however, a rather vague and meaningless provision. 
For each of the colonies a governor and a council 
were provided, to be appointed by the companies in 
England or by the sovereign, or by the lords proprie¬ 
tors, as the case might be. The duties of the gov¬ 
ernor were not substantially different from those of 
the Governors of our States now; or they might be 
more properly assimilated to those of the Governors 
of our organized Territories; and the duties of the 
Council were to advise and aid the Governor in the 
performance of his duties, to supply his place in the 
case of emergency, and to make rules and regula¬ 
tions for the management of tlie business of the col¬ 
ony in the absence of legislation by the colonists 
10 


146 


HISTORY OF THE DEVELOPMENT OF 


themselves, or in aid of such legislation as should 
be enacted hy them. This power of general legis¬ 
lation, universally conceded to the colonists them¬ 
selves, was in each and all the colonies exercised by 
a General Assembly of Delegates chosen hy them 
according to such arrangements as they themselves 
made, and usually with reference to such territorial 
subdivisions, such as counties, parishes, or districts, 
as they determined to be expedient for that and 
other purposes. 

The scope of the legislative power, thus conceded 
to the colonists from the beginning, was unlimited 
except by two restrictions,—the one that it should 
not he inconsistent with the laws of England, the 
other that it svas subject to be vetoed by the para¬ 
mount authority in England, the company, the lord 
proprietary, or the sovereign, as the case might be, 
or by the governor or the governor and council as 
the representatives of that authority. It is a re¬ 
markable fact that these restrictions were rarely 
called into operation. The illustrations of the exer¬ 
cise of the veto power are rare and exceptional, and 
occurred mainly at the time when the contest be¬ 
tween the colonies and the mother country was 
becoming accentuated preparatory to the Declara¬ 
tion of Independence. The reason for this is that 
the governors sent over from England were gener¬ 
ally prudent and discreet men; that the councils 
were generally composed of men from among the 
colonists themselves, who had the interests of their 
colonies at heart; and that there rarely arose under 
the circumstances of the time any occasion for col¬ 
lision between the colonists and the paramount au¬ 
thority. 


CONSTITUTIONAL AND CIVIL LIBERTY. 


147 


The other restriction which we have mentioned, 
that the colonial legislation should not he incon¬ 
sistent with the laws of England, was, as we have 
stated, rather indefinite in its meaning, and per¬ 
haps necessarily so. And yet the construction 
of this restriction entered into the subsequent con¬ 
troversy which resulted in the American Revolution. 
It was probably not contemplated by any one, at 
the time of colonization, that it would be sought to 
extend subsequent legislation by the English Par¬ 
liament over the American Colonies. At that time 
the power of the English Parliament to legislate for 
England itself, or to legislate at all, was, as w'e have 
already seen, in its infancy. The American colo¬ 
nists evidently did not contemplate any such legis¬ 
lation, fox they proceeded at once under their char¬ 
ters to establish their own legislative bodies, with 
full power over all proper subjects of legislation. 
Their construction of the restriction was that they 
should conform to the English laws then in force 
which were applicable to their altered conditions, 
and that they should not seek to derogate from the 
sovereignty of the English monarch; and this con¬ 
struction, it must he said, they faithfully observed. 
It was only when, by the Revolution of 1688 and 
the expulsion of the Stuarts from the English 
throne, the power of the feudal oligarchy was substi¬ 
tuted for that of the monarchy and became para¬ 
mount, that the greatly enlarged power of the Eng¬ 
lish Parliament, the organ merely of the feudal 
classes, was sought to he exerted upon the American 
colonies; and thereupon the inevitable clash oc¬ 
curred which resulted in our Declaration of Inde¬ 
pendence. 


148 


HISTORY OF THE DEVELOPMENT OF 


The estal)lisliiiieiit of a judicial system in tlie 
colonies was likewise left to the colonists theinsel ves; 
and their General Assemblies determined what 
courts of justice should lie instituted, and what 
their procedure should lie, with general reference 
to tlie English system. The colonial system, how¬ 
ever, differed radically in one respeOt from that then 
in force in England, and was rather in the nature 
of a return to Anglo-Saxon methods in vogue be¬ 
fore the Aornian conquest. Their general plan was 
to institute separate and independent local courts' 
with all jurisdiction, and a central court of appeals 
to determine contested questions of law on appeal \ 
from the local courts. The English system, on the 
other hand, as we know, provided for one system 
of concurrent courts, liaving both original and ap¬ 
pellate jurisdiction, but the mend)ers of which at 
times went into the country “ on circuit,” as it is 
called, to hold courts locally with juries, and for the 
purpose of jury trials. The colonial system has 
been perpetuated with us. 

The appointment of the judges in our colonial 
system was vested in the governor, or in the gov¬ 
ernor and council, and was, we believe, invariably, 
for life or good behavior—a principle which even 
in England had not yet lieen fully accepted, but 
which soon came to he the uniform usage also of 
that country, although with some absurd restric¬ 
tions; as, for instance, that the tenure of office of 
the judges should cease upon the death of the 
individual sovereign from whom they held their ap¬ 
pointments. 

It appears, therefore, that the governmental or- 


CONSTITUTIONAL AND CIVIL LIBERTY. 149 


ganization of our American Colonies was substan¬ 
tially the same under their charters which we see 
to-day prevailing in all the great English Colonies, 
such as Canada, Australia, and Cape Colony, and 
which, under the severe lesson taught to England 
by our Revolution, but which she has learned well, 
allow to the Colonies the largest possible measure 
of local freedom, with a dependence on the parent 
country scarcely more than nominal, and evidenced 
mainly by the appointment from England of the 
colonial governors. Our colonial system, indeed, 
was not very unlike our present Territorial organi¬ 
zation for the so-called Territories of our Union 
preparatory to their admission as States. In these 
Territories, which, as you are aware, are organized 
under an Act of Congress, whicli constitutes their 
Charter, our Federal Government, through the 
President and the Senate of the United States, sup¬ 
plies temporarily a governor and a judiciary, while 
the inhabitants of the Territories legislate for them¬ 
selves by means of a legislative assembly of their 
own choice, with the restriction that their legisla¬ 
tion must not be inconsistent with tlie laws of the 
Federal Union, and that it may be nullified by the 
Congress of the Union. And just as the ultimate 
purpose of Territorial organization is the admission 
in due time of the Territories into the Union as in¬ 
dependent sovereign States, so the ultimate and in¬ 
evitable effect of the Colonial organization, although 
that effect was not even dreamed of by any of the 
participators in the organization down to the latest 
days of its existence, was entirely similar, the de¬ 
velopment of independent nationality. The ultimate 


150 


HISTORY OF THE DEVELOPMENT OF 


separation of the American colonies from the 
mother country was a necessary result from the 
beginning: the arrogation of power to itself by the 
English Parliament which was denied by the Col¬ 
onies was only the occasion, not the cause, of the 
separation. All the Colonies of England will pur¬ 
sue the same course whenever a similar occasion 
arises for it—hereafter, however, probably without 
opposition by England, or even serious objection. 

From the foregoing brief and necessarily superfi¬ 
cial analysis of the charters granted by the Stuart 
kings of England for the establishment of our 
American colonies, of the conditions and circum¬ 
stances under which they were granted, and of the 
political organizations that were effected under them, 
it will be apparent even to the most casual inquirer 
into the truth of history that by them and through 
them one of the most important steps in all its 
annals was taken for the advancement of the cause 
of Civil Liberty. Through their instrumentality 
those Englishmen who were willing to abandon 
their homes and to seek new homes in the New 
World were enabled to shake off the fetters of 
Feudalism which still continued to a great extent to 
manacle their fellow-countrymen in England. They 
were enabled to establish their own legislatures, 
which were assemblies truly representative of the 
people, and not a Parliament struggling Avith mon¬ 
archy, first for existence, and afterwards for power, 
nor a Parliament the corrupt representative of an 
unprincipled oligarchy. They had their OAvn judi¬ 
ciary practically independent of the English sov¬ 
ereign. Only the executive authority remained a 


CONSTITUTIONAL AND CIVIL LIBERTY. 151 


connecting link with England, and nominally be¬ 
yond the control of the people; and yet even that, 
by means of the Councils, was to a considerable 
extent subordinated to the will of the people. The 
people of the colonies, in other words, had practi¬ 
cally the self-government which did not exist in 
England itself before the present century. 

Unfortunately, however, the colonists had brought 
with them their passions and their prejudices, and 
the spirit of religious intolerance that had been 
aroused and had been spread over all Europe by 
the Lutheran Reformation. They were ardent for 
Civil Liberty and the cause of human freedom; 
but the best part and the most essential element of 
Civil Liberty, the freedom of the human conscience, 
they did not at all recognize. And it is sad to think 
that the sacred soil of America, set apart in the 
councils of Providence as the home of Liberty, 
liberty civil and religious, should have been pol¬ 
luted by the fanaticism of religious persecution and 
a most disgraceful intolerance. Feudalism never 
came here; but the gloomy and bloodthirsty spirit 
of Odinism unfortunately found temporary lodg¬ 
ment in the home of Civil Liberty. 

In the very first charter granted for the Colony 
of Virginia, a.d. 1606, there is evidence of this 
shameful intolerance in a provision that none but 
members of the Established Church of England 
should be admitted into that colony; and although, 
when the movement for religious liberty set in, 
sons of Virginia were foremost in it, it must be 
conceded that the intolerance of the first Charter 
in the matter of religion was rigidly and rigorously 


152 


HISTORY OF THE DEVELOPMENT OF 


enforced down to the very opening days of our 
Revolution. There Avas no place ' in Virginia for 
either Catholic or Puritan, Quaker or Anabaptist, 
or for the adherent of any religious denomination 
whatever that did not admit the supremely absurd 
and almost blasphemous claim of supremacy of the 
sovereign of England in religious matters. It Avas 
once sought to efiect a settlement of Puritans Avithin 
the limits of the Colony; but they AA^ere summarily 
and violently ejected, and compelled to take refuge 
in the neighboring Colony of Maryland, AAdiere they 
Avere kindl}' received, and Avhere they laid the foun¬ 
dation of the City of Annapolis. And the attempt 
was never rencAved in Virginia. 

But the Puritans themselves Avere no more toler¬ 
ant in their oAvn settlement of Massachusetts than 
Avere the adherents of the Church of England in 
Virginia. It Avas their claim that they sought a 
land Avhere they might Avorship God in peace and 
AAuth freedom of conscience; but the freedom Avhich 
they claimed for themselves they Avere uiiAvilling to 
extend, and they did not hesitate to persecute mer¬ 
cilessly those Avho diftered from them in religious 
opinion. The proclamation of freedom to Avorship 
God as men pleased Avas coupled Avith the condition 
that they should be pleased to Avorship Him as the 
Puritans did. But the proclamation brought the 
truth prominently before men’s minds, and the con¬ 
dition ultimately became obsolete. 

In only three of the thirteen Colonies Avas there 
full religious freedom proclaimed and practised; in 
two of these three, not entirely Avithout restrictions. 
Maryland stands first and alone as the pioneer of 


CONSTITUTIONAL AND CIVIL LIBERTY. 153 


religious liberty and freedom of conscience in the 
Kew World; and George Calvert, Lord Baltimore, 
the founder of the Colony, who procured the grant 
of it from James L, in a.d. 1632, has therefore the 
pre-eminent honor of being the father of true Civil 
Liberty in English America. He soon had worthy 
imitators in the Anabaptist Roger Williams, who, 
proscribed and expelled from Massachusetts, took 
refuge in Rhode Island in a.d. 1636, and set up 
there the standard of religious liberty for all per¬ 
sons, and established there civil institutions of an 
exceedingly democratic character for that age; and 
in the Quaker William Penn, who, having received 
a grant from the Catholic Stuart James II. for the 
territory now included within the limits of the State 
of Pennsylvania, likewise proclaimed religious lib¬ 
erty there, with a remarkably democratic form of 
government. These three illustrious men, George 
Calvert, Roger Williams, and William Penn—the 
first a Roman Catholic, the second an Anabaptist, 
and the third a Quaker—are justly entitled to be 
regarded as the founders of Civil and Religious 
Liberty in English America. And it may be re¬ 
marked, by the way, as some indication of the influ¬ 
ence of the Netherlands upon Civil and Religious 
Liberty in England, that George Calvert was of 
Flemish origin; and also, as some indication of the 
influences exerted upon England by an oppressed 
sister island, that Calvert’s title of Baron of Balti¬ 
more was derived from a town in Ireland. 

But it is sad that we should be compelled to re¬ 
member, in this same connection, that when the 
Stuarts were expelled from England in a.d. 1688, 


154 


HISTORY OF THE DEVELOPMENT OF 


and the Great Revolution which English writers 
have been accustomed to laud as the final triumph of 
the cause of civil liberty in that country, but which 
in fact was the most infamous sham and fraud ever 
perpetrated in the name of Freedom, was accom¬ 
plished by a cabal of scoundrels, and when probably 
the most profoundly unprincipled hypocrite in all 
history, William of Orange, became King of Eng¬ 
land, the principles of the Calverts were almost 
immediately subverted in Maryland; the Calverts 
themselves were temporarily deprived of the Prov¬ 
ince ; and the adherents of the Church of England, 
combining with the Puritans, who had all been re¬ 
ceived into the Colony on terms of the utmost kind¬ 
ness and equality, seised the government of the 
Colony into their own hands, and, with a degree of 
baseness which has few parallels in history, pro¬ 
scribed and persecuted the religion of the founder 
of the Colony and of a large part of their fellow- 
citizens. It was the realization of the story of the 
viper in EEsop’s Fables, which, saved and warmed 
in the genial heat, turned against its benefactor and 
stung him. And all this was done with the aid and 
active encouragement of the party in England which 
set itself up as the champion of Civil Liberty. A 
more infamous chapter there is not in the whole 
history of our subject. We will draw the veil over 
it—only with the palliation, if such it can be con¬ 
sidered, that the age was one of intolerance in re¬ 
ligion and of bitter religious persecution; and that 
the demon of unreasoning fanaticism, merely a new 
phase of the bloody creed of Odin, had been un¬ 
chained in the violence of the Lutheran Reforma¬ 
tion. 


CONSTITUTIONAL AND CIVIL LIBERTY. 155 


But the seed planted by George Calvert, Roger 
Williams, and William Penn, grew apace, and pro¬ 
duced its harvest in due time; and while penal 
laws directed against the free exercise of religion 
disgraced the statute-books of most of the colonies, 
the spirit of toleration gradually grew and gained 
strength, and actual toleration existed long before 
formal toleration was proclaimed as the policy of 
our institutions. 

Far removed from the blighting influence of Feu¬ 
dalism and the feudal classes, and remote even 
from the control of monarchy, a democracy in fact, 
if not in name, grew up in the Western World. 
The American Colonists, although acknoAvledging 
the nominal sovereignty of the King of England, 
which, however, was scarcely more than nominal, 
legislated for themselves, and practically managed 
their own affairs in their own way, without inter¬ 
ference by the English Government. The English 
Governors, who were sent out to them, were gen¬ 
erally content to be a mere connecting link between 
the Colonies and the mother country, and they 
rarely sought to meddle unduly with the affairs of 
the colonists. 

Strange as it may appear to-day, it was the grow¬ 
ing power of the English Parliament, which was in 
its infancy in the days of the Stuarts when the 
Colonies were established, but which by the Revo¬ 
lution of 1688 acquired a position that overshad¬ 
owed the monarchy, that first gave concern to the 
Colonies, and initiated and precipitated the contest 
into which they were ultimately driven to maintain 
the rights of Civil Liberty which they had sought 


156 


HISTORY OF THE DEVELOPMENT OF 


to establish. It was the English Parliament, and 
not an English monarch, that proved to he the bit¬ 
terest enemy of American Civil Liberty; and to 
those who have carefully followed us in our state¬ 
ment of existing conditions in England the explana¬ 
tion of the apparent anomaly is not difficult. It is 
to he found in the fact which we have sought to en¬ 
force, that the Parliaments of England from the 
accession of the Stuarts down to the beginning of 
the present century, with the exception, of course, of 
Oliver CromweH’s time, were merely the organ of 
Feudalism and the feudal classes, and not of the 
people of England, and that their antagonism to 
the American Colonies on this basis was entirely 
consistent from beginning to end. The convoca¬ 
tions occasionally held in the days of the Tudors 
and the Plantagenets, which it has been sought to 
dignify with the name of Parliaments, had cheer¬ 
fully co-operated with the tyrannical monarchs of 
those races in fulminating edicts to restrict per¬ 
sonal liberty by preventing the departure of any 
person or persons from the realm without the royal 
permission. The Parliaments of the days of the 
Stuarts had sought to restrict and curtail the opera¬ 
tion of the charters granted by the Stuart kings in 
the interest of colonization. The Parliaments, that 
succeeded the Kevolution of 1688, sought directly 
to control the American Colonies by parliamentary 
legislation. Then the clash came. 

The Colonists had their own local legislatures; 
these they deemed sufficient for them. They saw 
neither necessity nor propriety for the enactment of 
legislation for them by an English Parliament, rep- 


CONSTITUTIONAL AND CIVIL LIBERTY. 157 


resenting an oligarchic class that had no sympathy 
with them or with their aims or purposes. They 
had no quarrel with the kings of England, at least 
with the Stuart kings of England, with whom they 
had most to do. Those kings had been in fact their 
friends, and had aided them in their development. 
It was only when the stupid kings of the Hano¬ 
verian line became the mere puppets of a parlia¬ 
mentary government, and the executive power of 
the State became vested in a cabinet, the committee 
and the creature of Parliament, the Parliament it¬ 
self being the creature of the feudal oligarchy, that 
the power of the Parliament became felt by the 
colonists, and it became necessary to define the re¬ 
spective rights of the ymrties. The [)Ower of the 
colonies had grown, in the meantime, as well as the 
power of the Parliament. The few scattered and 
feeble settlements along the fringe of the Atlantic 
coast had become strong and energetic communi¬ 
ties ; and the vague and indefinite aspirations, with 
which they had deliberately placed an ocean be¬ 
tween themselves and the Old World had taken 
shape and form and become resolute purpose. 

The colonies had all been established under some¬ 
what similar conditions; and their charters and 
governmental organizations bore great similarity to 
each other, notwithstanding natural difterences of 
detail. Their development, therefore, was naturally 
that of substantially similar civil institutions, which 
the greater intercourse between them, as they became 
more settled, tended to confirm. Especially was 
confirmed the general sentiment in favor of the 
greatest personal liberty which they had come to 


158 


HISTORY OF THE DEVELOPMENT OF 


seek in the New World; and also the separate and 
independent existence of the three great powers of 
government, the legislative, the executive, and the 
judicial, which had been naturally developed from 
their charters, and which they had come to regard 
as the great safeguard of their Civil Liberty. In 
England the supreme and absolute power, which 
had been held by the monarch, had been seized by 
the Parliament; and there was there no such sharp 
line of demarcation as had been traced in America 
by the force of circumstances between the three 
great branches of the government. It is plain that, 
under such radical difference in the theory of gov¬ 
ernment, a conflict was inevitable, sooner or later, 
between England and America. 

But America was yet weak, and England was 
comparatively strong. The Colonies, it is true, had 
grown from mere straggling settlements along the 
sea-coast. They had cleared and occupied all the 
land from the Ocean to the base of the Allegheny 
Mountains, and they had quite rapidly increased in 
population. But they were disjointed communities. 
While they had common aspirations and common 
purposes, they had no political union, and their 
local interests occasionally clashed with each other. 
The first stimulus to political union came under the 
pressure of extraneous circumstances, about a.d. 
1745. In that year war broke out in Europe be¬ 
tween France and England, both of Avhich, at the 
time, were under governments equally weak and 
wicked. Their conflict extended to the colonies of 
the two countries on the North American Con¬ 
tinent; and the English Colonies for the first time 


CONSTITUTIONAL AND CIVIL LIBERTY. 


159 


made common cause with each other, in a war 
against the French and Indians, in which it must he 
confessed by the impartial historian that the Eng-' 
lish were the unprovoked aggressors. Again, in 
the Seven Years’ War between France and England 

O 

extending from a.d. 1756 to a.d. 1763, which re¬ 
sulted in the expulsion of the French from Yorth 
America, the Colonies of the two countries were 
again involved; and the English Colonies were 
drawn more closely together, not only by the bond 
of a common sympathy, but likewise by the union 
of their military forces and the temporary consoli¬ 
dation of the executive power of several of the colo¬ 
nies in one governor. This was the contest in which 
the great capacity of George Washington was first 
manifested; and the development of it gave to the 
colonists a keen appreciation of the advantages of 
union between themselves for defence against a com¬ 
mon enemy. 

It was scarcely anticipated, however, by the colo¬ 
nists in general at that time, even if by the most 
keen-siglited among them, that the first common 
enemy, against which their newly-awakened sense 
of a common interest would be directed, would be 
their so-called mother country, England. And yet 
sucli proved to be the fact; and that fact, as we 
have already intimated, was the inevitable result of 
the existing conditions after the removal of the 
French. The presence of the latter in America 
might have postponed the result indefinitely. Their 
expulsion made it inevitable : for that expulsion 
gave opportunity for the radical divergence to be 
manifested which had taken place between the 


160 


HISTORY OF THE DEVELOPMENT OF 


democratic colonists of America and the feudal 
classes into whose hands the government of England 
'had fallen, and between the American and English 
theories of government. The result might perhaps 
still have been postponed h}" prudence on the part of 
England, and respect on her part for the colonial 
sentiment. But that prudence was wanting. The 
government of England at the time was not in the 
hands of statesmen, but of corrupt court-favorites 
and unprincipled adventurers. 

In A.D. 1765 the English Barliament assumed to 
tax the American Colonies, and passed what is 
known in history as the Stamp Act for that pur¬ 
pose. The Colonists claimed that they were not 
represented in the Englisli Parliament, and that 
there could not lawfully be any taxation without 
representation, a phrase which they adopted as their 
shibboleth during all the subsequent years of con¬ 
troversy upon the subject. As we now look at the 
matter, the phrase is meaningless and unreasonable, 
inasmucli as it apparently states only half the case. 
Had the position been that there should be no 
legislation without representation it would have been 
logical; for to concede that the English Parlia¬ 
ment might legislate in other matters for the Ameri¬ 
can Colonies, but that it might not tax them, is not 
logical. Legislation is the prerogative of sove¬ 
reignty, and taxation is a necessary incident of it. 
This is a principle of political economy too plain 
to be controverted by any one at this day. But 
it does not follow that the Colonists were wrong. 
On the contrary, they expressed the true principle, 
but in a halting way, such perhaps as was required 


CONSTITUTIONAL AND CIVIL LIBERTY. 161 


by the circumstances of the times. It was by means 
of the purse, and through its instrumentality, as 
will be apparent from what we have heretofore said, 
that all Anglo-Saxon legislation was effected prior 
to the Revolution of 1688. It is a low plane upon 
which to place the matter of legislation, but such, 
beyond question, was the plane upon which it had 
been placed in England. All Parliaments in Eng¬ 
land prior to 1688 had been called merely to vote 
supplies to the sovereign. That was the sole and 
only purpose for which they were convoked. But, 
when convoked, they frequently petitioned the sov¬ 
ereign for a redress of grievances, such as they may 
have supposed to exist at the time. As the condi¬ 
tion for the grant of the needed supplies, the sov¬ 
ereign occasionally granted the requested redress of 
grievances. And this is what constituted the sup¬ 
posed legislation of the English Parliament. In 
this sense, and under this theory of the scope of 
legislation, the colonists, in the phrase adopted by 
them, were technically correct, but with reference 
only to the conditions existing in England prior to 
1688. The substantial fact, however, was that the 
American Colonists would not admit that the Eng¬ 
lish Parliament had any right to legislate for them 
at all. Their dependence was upon the English 
sovereign as their chief executive, not upon the 
English Parliament as their legislature. The Eng¬ 
lish sovereign had practically abdicated his execu¬ 
tive functions into the hands of the Parliament, 
acting through the Cabinet,—a fortunate circum¬ 
stance, ultimately, for English Liberty, but which 
virtually released the American Colonists from their 


162 


HISTORY OF THE DEVELOPMENT OF 


allegiance. Moreover, the American Colonies had 
grown; they had reached man’s estate; the time 
had come for their emancipation from tutelage. 
They had fled from feudalism: that feudalism, al¬ 
though in a rnodifled shape, was reaching out to 
recover control of them. All the circumstances in¬ 
dicated the last struggle of an irrepressible con¬ 
flict between Civil Liberty and Feudal Slavery. 

Upon the passage of the Stamp Act the colonists 
at once began to arm themselves. Resistance was 
openly threatened to the enforcement of the Act. 
Prudence prevailed in England for the moment, 
and the Act was repealed. But two years after- 
Avards, in a.d. 1767, Parliament returned to the at¬ 
tack, and passed an Act levying duties on various 
articles of importation into the Colonies, including 
tea. Again there were determined evidences of re¬ 
sistance in the Colonies. England sent o\"er troops. 
There was bloodshed in the streets of Boston. 
Again there was a returning sense of reason in the 
English Cabinet and Parliament; hut it Avas only 
partial. There Avas a repeal of all the duties, ex¬ 
cept on the one article of tea. But it was not 
against the amount of the taxes so much as against 
the principle of taxation Avithout representation, or 
rather, in fact, against any legislation for the Colo¬ 
nies by the English Parliament, that the colonists 
protested. The agitation Avent on. All the colo¬ 
nies alike noAv felt that their rights were involved. 
They resolved to make common cause against the 
aggression. A Congress of Delegates from all the 
Colonies met in Philadelphia in a.d. 1774 to formu¬ 
late their grievances, and to attempt to procure re- 


CONSTITUTIONAL AND CIVIL LIBERTY. 163 


dress for them. This was the hrst successful at¬ 
tempt to coml)ine the Colonies in a common and 
concentrated cause of action. 

The remainder of the story is well known. The 
Congress entreated and remonstrated in vain. Open 
hostilities broke out in the next year, a.d. 1775, 
with the Battle of Lexington, and on the Fourth of 
July of the succeeding year (a.d. 1776) the Declara¬ 
tion of Independence was issued. The Thirteen 
United Colonies became thirteen independent sov¬ 
ereign States, under the name of the United States 
of America, bound together as one nation in the 
bonds of an alliance against a common enemy—not, 
as has sometimes been said, against an unnatural 
mother Avho had turned her arms to the oppression 
of her children, hut against the pretensions of a 
feudal oligarchy which had, in the first instance, 
driven the colonists to emigration, and had ever 
been their Utter and unrelenting enemy. The 
American War of Independence was only the cul¬ 
mination of the contest which had begun in Eng¬ 
land, in A.D. 1066, with the conquest of that country 
by William of Normandy and the grinding despot¬ 
ism of the Feudal System. It was the beginning 
of the end of the war of the people against the feu¬ 
dal classes. 

The cause of Civil Liberty now proceeded by no 
uncertain steps. In the next year (a.d. 1777) the 
United States adopted formal Articles of Confed¬ 
eration by which they endeavored to form a perma¬ 
nent national union, not only for the purpose of the 
pending War of Independence, hut for all time. In 
A.D. 1783, after upwards of seven years of war, and 


164 


HISTORY OF THE DEVELOPMENT OF 


nearly twenty years of contest and agitation, they 
secured their independence and a position among 
the nations of the earth by a treaty of peace with 
England. Four years afterwards, in a.d. 1787, when 
the Articles of Confederation had been ten years in 
existence, and had demonstrated their insufficiency 
for the purpose for which they had been formulated, 
the present form of governmental union was adopted 
by the promulgation of the existing Federal Con¬ 
stitution, which went into effect on March 4, 1789, 
by its acceptance, in the meantime, by eleven of the 
thirteen States, the other two soon afterwards fol¬ 
lowing. The Declaration of Independence, the Ar¬ 
ticles of Confederation, and the present Federal 
Constitution, were the three steps by which was 
consolidated and completed,—we presume, however, 
that we should not say perfected,—the work begun 
by George Calvert, Roger Williams and William 
Penn. It was the consolidation and completion of 
the stately edifice of Constitutional and Civil Lib¬ 
erty. 

Of the nature and scope of the steps thus taken, 
and how they tended to produce the result which 
we have indicated, it will be proper to discourse in 
the following lecture. 


CONSTITUTIONAL AND CIVIL LIBERTY. 165 


LECTURE VI. 

THE DEVELOPMENT OF CIVIL LIBERTY IN AMERICA. 

( Continued.) 

In our last Lecture we mentioned the Declaration 
of Independence, our Articles of Confederation, 
and our Federal Constitution as the three success¬ 
ive final steps by which the development of Civil 
Liberty was completed in America. It is proper 
that we should give a reason for the statement, for 
a mere Declaration of Independence is of itself no 
evidence of progress, of true progress of any kind; 
nor is the establishment of a new government any 
such evidence. It is the principles that are formu¬ 
lated and the conditions that are established which 
constitute progress. 

By the Declaration of Independence the thirteen 
United Colonies became thirteen independent sover¬ 
eign States. But from what has been already said, 
it is quite apparent that there was no extraordinary 
or radical change in their civil or political institu¬ 
tions, but merely a natural and legitimate develop¬ 
ment. It was comparatively easy to develop and 
transform the Stuart Charters into republican Con¬ 
stitutions, and to crystallize in organic law the al¬ 
ready existing triple division of power between the 
legislative, executive and judicial branches of gov¬ 
ernment, which had already by usage become part 


166 


HISTORY OF THE DEVELOPMENT OF 


of the civil institutions of the Colonies. The prin¬ 
ciple of a limitation upon the ordinary agencies of 
government and upon the extent to which govern¬ 
mental organization might be applied was already 
found in the charters. So little, in fact, was the 
amount of alteration required in the transformation 
of our colonial into an independent republican or¬ 
ganization, that one of the Colonies now become 
States (Rhode Island) retained as its Constitution 
until A.D. 1840 the Charter granted to Roger Wil¬ 
liams by Charles I. in a.d. 1643, and renewed by 
Charles II. in 1663. Indeed, the only radical and 
substantial change etfected by the Declaration of 
Independence was one of theory rather than of con¬ 
crete fact, the substitution of the principle .of the 
sovereignty of the people for the theory of the sov¬ 
ereignty of the Ring of England. The reserved 
power supposed by the Common Law of Feudalism 
to he vested in the latter, and which our American 
colonists acknowledged as long as they were them¬ 
selves in a condition of weakness and tutelage, the 
Declaration of Independence solemnly proclaimed 
to be the inalienable inheritance of the people them¬ 
selves ; and that assertion was not, in the ultimate 
analysis of the circumstances of the time, the result 
of any oppression by the English King or the Eng¬ 
lish Parliament, but rather the legitimate and logi¬ 
cal result of long-existing conditions. The action 
of the English King and Parliament gave the occa¬ 
sion for the Declaration of Independence, but was 
not the cause of it. The child had grown to man’s 
estate, and had become entitled to the rights of a 
man; but the assertion of his manhood, in the face 


CONSTITUTIONAL AND CIVIL LIBERTY. 167 


of the feudal slavery which still held Europe in 
thraldom, was an act of momentous importance in 
the history of Civil Liberty. It was the assertion 
of a fundamental principle radically antagonistic 
to the prevailing tenets of Feudalism. 

But the States, which had so combined in the 
enunciation of this fundamental principle, had no 
other bond of union than the principle itself, the 
similarity of their civil institutions, and the sense 
of a common danger in the presence of a common 
enemy. They were individually weak, and even if 
they should succeed in maintaining their position 
against the pretensions of the English Government 
in the war then pending, it was not at all clear that 
their peculiar position would not afterwards lead to 
disastrous strifes between themselves, and render 
them an easy prey in the future to the aggressions 
of some ambitious European Power. Even England 
might return to the attack, as she actually did thirty 
years afterwards; and the fate of the States of 
Greece before the assault and the intrigues of 
Philip and Alexander of Macedon might well also 
prefigure the fate of the infant States engaged in 
the concerted action against England. It became 
evident to all thoughtful minds that, in order to 
carry on the existing war successfully, to combine 
the resources of the States for possible future wars, 
to insure tranquillity at home and security abroad, 
it was absolutely necessary that there should he 
established some central governmental organization 
which could wield the combined power of all the 
States. For this purpose the so-called Articles of 
Confederation between the States were almost im- 


168 


HISTORY OF THE DEVELOPMENT OF 


mediately formulated, and they went into effect in 
A.D. 1777, the year after the proclamation of Inde¬ 
pendence. 

By the Articles of Confederation it was sought 
to vest in a Congress of Delegates from all the 
States, wherein each State was to have equal voice 
through as many Delegates as it should please to 
send, substantially the same powers that are now 
vested in the Federal Congress by our present Fed¬ 
eral Constitution; hut there was no provision for 
any Federal Executive authority or for any Federal 
Judiciary. Consequently the Articles of Confed¬ 
eration effected not so much a governmental organi¬ 
zation as a league of independent States; and al¬ 
though they sufficed to carry the War of Independ¬ 
ence to its crowning conclusion at Yorktown—a 
consummation, however, which it may be well 
questioned whether the Union could then have 
reached without the consummate genius of George 

O o 

Washington and the timely assistance of France— 
the Union practically fell to pieces after the War, 
and the Articles of Confederation became a dead 
letter. The States frequently neglected to send 
delegates to Congress; the sessions of Congress 
became irregular and infrequent; and, worse than 
all, there Avas no power in Congress to enforce its 
legislation. There Avas, as Ave have stated, no exec¬ 
utive, no judiciary, no central authority Avorthy of 
the name. Bickerings bet.Aveen the States became 
frequent, and there Avas great danger that in their 
mutual misunderstandings the great results of the 
War of Independence AA^ould be undone. If that 
disaster Avould be avoided, it Avas essential to 


CONSTITUTIONAL AND CIVIL LIBERTY. 169 


strengthen the bond of union. How to accom¬ 
plish that result, to establish a strong central gov¬ 
ernment, and yet to preserve the autonomy of the 
States, was the difficult problem with which the 
statesmen of the time were called upon to grapple. 

But there were true and earnest statesmen in 
those days. Washington, as we know, had gone 
into honored retirement at the end of the War; 
hut he remained a keen and most interested spec¬ 
tator of passing events, and maintained a frequent 
correspondence with his associates of the War in 
regard to them. Final action towards the desired 
result was, curiously enough, determined by him in 
the course of a controversy that had arisen between 
the States of Maryland and Virginia in regard to 
their respective rights on the Potomac Biver and 
along Chesapeake Bay. Commissioners had been 
appointed by the two States to adjust the difficulty, 
the result of which was an amicable compact signed 
in A.D. 1785. But this was not the only or even the 
most important result. Washington, who was not 
himself one of them, had invited the Commissioners 
to meet at Mount Vernon; and there he so effect¬ 
ively directed their attention to the broader subject 
of the general condition of the States under the 
Articles of Confederation that they immediately 
inaugurated a movement in Maryland and Virginia, 
which very soon extended to all the other States, 
for the call of a Congress of Delegates from all the 
States to revise the Articles of Confederation and 
to form a more perfect Union. 

The movement met with a ready response. Del¬ 
egates were elected by all the States, and the Con- 


170 


HISTORY OF THE DEVELOPMENT OF 


gross met in Philadelphia in 1787. Washington 
was one of the Delegates from Virginia, and was 
elected as the presiding officer of the body. The 
result of its labors was the total abandonment of 
the Articles of Confederation and the formulation 
of the present Federal Constitution, the most per¬ 
fect instrument, as a great English statesman has 
observed, that ever emanated at any one time from 
the hands of man. 

There ensued a most heated controversy through¬ 
out the length and breadth of the land upon the 
question of the adoption of this Constitution. The 
scheme was bitterly antagonized by some, and as 
warmly espoused by others. Parties were aligned 
for and against it. The theories of Federalism and 
Anti-Federalism distracted the thoughts of the 
people for nearly two years, and did not cease even 
upon the adoption of the Constitution, which was 
the tinal result of the agitation. It was provided 
by the Constitution itself that it should go into 
effect upon its adoption by nine of the States. 
During the years 1787 and 1788 eleven of the thir¬ 
teen States, by popular conventions called expressly 
for the purpose, some of them, however, by very 
narrow majorities, and in some cases not without 
the suspicion of questionable methods, gave in their 
adhesion to the new scheme of central government; 
and that scheme went into practical effect on the 
fourth of March, a.d. 1789, with George Washing¬ 
ton as the first President of the new Union, al¬ 
though his actual inauguration did not occur until 
April 30th of that year. 

Two of the States, Khode Island and ilorth Caro- 


CONSTITUTIONAL AND CIVIL LIBERTY. 171 

lina, held aloof for some time; but the former gave 
its assent in iTovemher of 1789, and the latter in 
May of 1790; and their assent put an end to a situ¬ 
ation Avhich, if persisted in, might have proved 
awkward and embarrassing. 

The thirteen United States thereupon, while for 
most purposes retaining unimpaired their separate 
existence and independence as sovereign States, be¬ 
came for other purposes merged into a new l^ation, 
a peculiarity of condition which requires more ex¬ 
tended notice from us, in view of the failure of 
many even of our own citizens fully to appreciate 
it. This was the culmination of the movement for 
Independence, and it marks a new era in the his¬ 
tory of Civil Liberty. It is now incumbent upon 
us to show specifically what was accomplished by it, 
and how it deserves the importance which we at¬ 
tribute to it; for, in our opinion, not since the 
proclamation of the Mosaic Law upon Mount Sinai 
and the establishment of the Federal Kepuhlican 
Commonwealth of Israel under a somewhat similar 
Federal Constitution was there a scheme of govern¬ 
ment instituted so wise in its provisions and so well 
calculated to promote the cause of Civil Liberty. 

Benjamin Franklin, whose shrewd good sense 
was a potent factor in the formulation of the Con¬ 
stitution, remarked of it, as soon as it had been 
finally drafted and had received the signatures of 
tlie Delegates who concurred in it, that it was not 
probably the best that could be made, hut that it 
was the best of which our people were then capa¬ 
ble. And we have cited the more eulogistic com¬ 
ment of an eminent English statesman upon it. 


172 


HISTORY OF THE DEVELOPMENT OF 


pronounced after a century of experience of its 
practical operation. But it is not to be understood 
from the statement of either statesman that the 
principles of our Federal Constitution were a new 
revelation of political truth, or that the Constitution 
itself was an absolutely new creation, emanating 
from the Congress that promulgated it, like Mi¬ 
nerva, springing full-armed and perfect from the 
head of Jove. The work of the framers of oar 
Constitution was not a new creation, but a wonder¬ 
fully wise elaboration of existing conditions, most 
wise in its perfect simplicity. It was the glory, 
however, of these framers of our organic law to 
have been the first to give formal shape and practi¬ 
cal efiect in governmental organization to the three 
peculiar fundamental features that characterize our 
scheme of Constitutional and Civil Liberty. These 
three features are: 1st. The limitation of the ordi¬ 
nary functions of government through the means of 
written Constitutions. 2d. Our dual system of 
State and Federal Government. 3d. The triple 
division of the ordinary functions of government 
between the legislative, executive and judicial de¬ 
partments. To the consideration of these three 
peculiar features of our system we may well devote 
our present lecture. 

The limitation of the ordinary functions of gov¬ 
ernment by the means of written Constitutions we 
have stated to be the primary principle of our polit¬ 
ical system and our chief safeguard for the preser¬ 
vation of Civil Liberty. And we may add that our 
theory in that regard has now been accepted by all 
the nations of the civilized world except England. 


CONSTITUTIONAL AND CIVIL LIBERTY. 173 


How we have elaborated and applied the theory is 
a matter of interesting and curious study. 

It is an axiom of our Political Economy that all 
power is from the people. And this is not incon¬ 
sistent with the doctrine of Saint Paul, that all 
power is from God. An aphorism that may be ap¬ 
propriately cited in this connection —Vox popuU, 
vox Dei —“ The voice of the people is the voice of 
God ”—when rightly understood and applied, will 
serve to explain the apparent contrariety. And if 
we read the axiom to the effect that “ all power is 
in the people from God,” we will readily reconcile 
the maxim of Religion and the maxim of our Politi¬ 
cal Economy. 

Our civilization is based upon the Ten Command¬ 
ments, which are merely the specific enunciation of 
the principles of ^latural Law. All human law has 
its sanction solely in the law of God; and without 
such divine sanction there can be no possible basis 
for human law. Having ineradicably impressed 
upon the heart of man through the law of nature 
in the first instance, and afterwards through the law 
of Revelation, the fundamental principles that were 
to regulate his conduct and to conserve the good 
order of society, by the means of Avhich he was to 
work out his destiny, the Creator gave to man the 
liberty to elaborate the details of the great scheme 
according to his own devices and with reference to 
his surroundings, but always with due regard to the 
great purpose which such human methods as man 
might invent were intended to supplement. But 
precisely for the reason that such human methods 
were intended to supplement the Divine purpose, it 


174 


HISTORY OF THE DEVELOPMENT OF 


is that human law derives its sanction from God. 
The will of a mere numerical majority is in itselt 
entitled to no greater weight than the arbitrary 
edict of a des})otic and irresponsible monarcli. J>ut 
it is because there is a conscious sense ot rectitude 
indelibly impressed upon the human soul, which the 
great multitude will not disregard, while the indi¬ 
vidual may err, that the voice of the people, when 
left untrammeled by passion or prejudice, is in 
truth the voice of God, and not, like the edict of the 
monarch, the result merely of the power of l)rute 
force. 

We often speak of an appeal to public opinion: 
we really mean an appeal to the God-given public 
conscience. It has been truly said that virtue and 
intelligence are essential requisites for the preser¬ 
vation and perpetuation of republican institutions; 
and it is because, when the people have ceased to 
be guided by virtue and intelligence, and the dic¬ 
tates of conscience, their voice is no longer the 
voice of God. 

Understanding then, in the proper sense, that all 
power is in the people from God, we hold truly that 
it is the right of the people to ordain and establish 
government, and to prescribe its limitations; and the 
limitations which they prescribe are not only limita¬ 
tions upon the agencies which they create, hut like¬ 
wise upon their own occasionally inconsiderate ac¬ 
tion. As the sovereign of England, in granting 
our Colonial Charters, had assumed to exercise the 
reserved power of the State which Feudalism and 
the power of brute force had wrongfully transferred 
from the people to the monarch, and had thereby 


CONSTITUTIONAL AND CIVIL LIBERTY. 175 


caused tlie establishment of our colonial govern¬ 
ments and placed limitations upon them, so under 
our theory the people, acting in their sovereign ca¬ 
pacity, have thought proper to organize the power 
of the State under written Constitutions. The Co¬ 
lonial Charter was in writing; and it was found to 
he a beneticial method for the organization and de¬ 
velopment of the Colony. The State Constitution 
is its legitimate counterpart, in fact merely an evo¬ 
lution from it; and the Federal Constitution is an 
enlargement and adaptation of the State Constitu¬ 
tion. The theory of a Constitution is, that all power 
is in the people; that the people, by means of a 
Constitution, ordain their form of government, de¬ 
termine its scope, and establish its limitations; and 
that they reserve for themselves, for future disposi¬ 
tion, if need be, all the power not vested by such 
Constitution in their ordinary agencies of govern¬ 
ment. 

Under this theory, the Supreme power in the 
State may be said to be always in abeyance. For 
the body in which the legislative authority is vested 
with us can no more be said to be supreme, in the 
proper sense of the term, than can the executive or 
judicial branch of government. All these branches 
are only agencies that maybe controlled, and whose 
action may even be reversed, by the summoning 
into action of the reserved power of the people by 
the way of Constitutional amendment. And every 
constitutional provision is either a specific grant of 
power to some agency subordinate to the people, or 
a specific limitation upon such agency or upon the 
people themselves. That, under this theory, all con- 


176 


HISTORY OF THE DEVELOPMENT OF 


stitiitioiiiil ordinances must lie in writing, is quite 
evident; and it is e(|ual]y evident that constitutional 
government, in our sense of the term, necessarily 
implies a government ordained and limited by written 
guaranty. So it is understood, not only by our own 
American })eople, but likewise by all the nations of 
the civilized world, except England; for, as we will 
see more fully in the sequel, all the nations of the 
civilized world except England have noAv adopted 
some form of constitutional government under or¬ 
dinances and guarantees reduced to writing, and as 
such accepted by all parties atfected by their pro¬ 
visions. 

This, it may be observed, is wholly antagonistic 
to English ideas. England has no written Consti¬ 
tution, and never bad; and it has been a matter of 
occasional boast with English Statesmen, and some 
English writers on Political Economy, that such is 
the case. A written Oonstitution, they argue, with¬ 
out political conditions to support it, and public 
sentiment to give it vitality, can be no more than a 
mere dead letter; and if the public sentiment and 
the political conditions exist sufficient to serve the 
purpose of constitutional guarantees, and to control 
the ordinary powers of government, a written Con¬ 
stitution is useless and unnecessary, and possibly 
even more of a hindrance than of benebt in the 
administration of civil affairs. The argument is 
plausible, but wholly untenable. Litera scrij^ta 
inanet —the written word remains, while the spoken 
word ])asses away, or is forgotten or imperfectly re¬ 
membered ; and it would seem to be the dictate of 
common sense that the organic or fundamental law 


CONSTITUTIONAL AND CIVIL LIBERTY. 177 

of a State or I^ation, whereon the whole super¬ 
structure of government rests, shoiilcL be definitely, 
and with all possible precision, set forth in such a 
manner as that its text should ever he before the 
eyes of the people and a guide to their conduct. 

The result of the English idea is that, while Eng¬ 
land at present, by the force of circumstances, en¬ 
joys a very large measure of Civil Liberty, it has no 
Constitutionalism whatever, in our sense of the 
term; and it is competent for any English Parlia¬ 
ment, at any time, to revolutionize the wjiole political 
structure of the country, to repeal the provisions of 
Magna Charta and the Habeas Corpus Act, and all 
the other supposed guarantees of civil liberty, and 
to establish a dictatorship, if deemed proper or ex¬ 
pedient by a faction in power or by a fleeting public 
sentiment. The English Parliament is legislatively 
omnipotent, and is the seat of all reserved power, 
although in part, at least, deriving its existence and 
its election from the people ; and it may by a single 
enactment, as we have stated, sweep away all the 
safeguards of civil liberty. Constitutionalism would 
seem to imply a certain amount of stability in polit¬ 
ical institutions, not dependent exclusively on exist¬ 
ing public sentiment, which is apt to be fleeting and 
variable; and if England has any such element of 
immutability in her institutions, strange as it may 
seem, it is to be found in the vis inertioe of the House 
of Lords. How little of true Constitutionalism, how¬ 
ever, there is in that relic of a barbarous Feudal¬ 
ism, no intelligent person needs be told. 

Our ideas of Constitutionalism are wholly antag¬ 
onistic to any system of government that leaves the 
12 


178 


HISTORY OF THE DEVELOPMENT OF 


fundamental law to the mercy of ordinary legisla¬ 
tive enactment. Constitutions with us are ordained 
hy the people in their sovereign capacity, not by 
legislatures, which are themselves only creatures of 
Constitutions and agents of the people to carry their 
constitutions into etfect. The people, it is true, cannot 
with us meet in one general assembly, as did the peo¬ 
ples of the little Republics of ancient Greece, or as the 
barbarian tribes did, from whom English writers are 
fond of deriving our civil institutions, or as barba¬ 
rians and savages now are accustomed to do. For 
large and extensive States, and even for populous 
cities, the principle of aristocracy, in the guise of 
the representative system, must of necessity be 
grafted upon democracy; and neither in the making 
of Constitutions, any more than in the enactment 
of ordinary legislation, can the people act except by 
delegates. A pure democracy is impossible, except, 
perhaps, for such States as Andorra and San Marino. 
Constitutions, therefore, must necessarily be formu¬ 
lated in a manner analogous to ordinary legislation, 
but usually by conventions or- assemblies of dele¬ 
gates selected by the people specially for that pur¬ 
pose alone. But it has been usual, also, when con¬ 
stitutions have been so formulated, to submit them 
to the popular vote for final adoption or rejection. 
Thus it has been that all our American State Con¬ 
stitutions, and also our Federal Constitution, have 
been adopted. And it is one of the best attributes 
of constitutional government so organized that it 
seeks not only to restrain and limit the ordinary 
agencies of government against the commission of 
excess, but likewise to limit and guard the action of 


CONSTITUTIONAL AND CIVIL LIBERTY. 179 


the people themselves against the impulses of sudden 
passion, and to protect the just rights of minorities. 
If it does not always accomplish that result, it is in 
consequence of the imperfection incident to all 
human effort. 

The second peculiar feature of our Constitutional 
System is the dual plan of State and Federal Gov¬ 
ernment, a feature which I may designate as one 
purely of American invention, although even this 
was also the outgrowth, in a measure, of our spe¬ 
cial conditions. It is a feature very little under¬ 
stood by other nations, and not always as well un¬ 
derstood by our own people as it should be. To’ 
the student of the history of Constitutional and 
Civil Liberty it is, perhaps, the most interesting 
characteristic of our institutions. 

The Declaration of Independence, as we have 
stated, converted our thirteen American Colonies 
into thirteen sovereign and independent States. 
Their adoption of the Federal Constitution con¬ 
verted and blended them into one Elation, and yet 
left them separate, sovereign, and independent 
States. What is the meaning of this apparent 
paradox, so well summarized in our national motto : 

E pluribus Unum ”—“ Erom. many one It cer¬ 
tainly indicates one of the most peculiar, and yet 
one of the simplest and most effective schemes ever 
yet devised by the genius of man for the preserva¬ 
tion and perpetuation of Civil Liberty. Before it 
there probably never existed anything of the kind 
in the world, unless, perhaps, it was in the Com¬ 
monwealth of Israel; for the system is very differ¬ 
ent from that of alliance or confederation which 


180 


HISTORY OF THE DEVELOPMENT OF 


kept together the States of Holland, the Cantons of 
Switzerland, or the Cities of the Hanseatic League. 
The system of Confederation is an obvious one, hut 
there is no element of perpetuity in confederations. 
They arise from some great overshadowing emer¬ 
gency, but Avhen the emergency has passed they 
fall to pieces. Our fathers, who framed the Decla¬ 
ration of Independence and our existing Federal 
Constitution, before they devised the latter scheme, 
had recourse also to the system of confederation ; 
but it had failed them after the emergency had 
passed, as similar previous attempts by other peo¬ 
ples had failed. It was evident to the framers of 
our American Federal system that something new 
in government was to be devised in order to solve 
the problem of the perpetuity of republican institu¬ 
tions. And yet the device which they adopted was 
a simple one. They divided the subjects of gov¬ 
ernmental action; they segregated those that were 
of a general character from those that were merely 
local in their nature; the latter they left to the 
States, the former they vested in the new central 
government which they then established. But the 
matters confided to the central government they 
specifically enumerated, and all subjects of govern¬ 
mental concern not so specified they expressly de¬ 
clared to remain vested in the States. Thus it was 
sought to establish independent, and yet concurrent, 
spheres of action for the General Government and 
for the State Governments, and to prevent collision 
and conflict between the two. 

Among the principal matters committed to the 
charge of the General or Central Government Avere 


CONSTITUTIONAL AND CIVIL LIBERTY. 181 


the regulation of commerce with foreign States or 
Nations, the regulation of commerce between the 
States themselves as States, the regulation of money 
or the medium of exchange and of weights and 
measures, the control and management of the postal 
service, the encouragement of the arts and sciences 
by the granting of patents and copyrights, the main¬ 
tenance of land and naval forces for the general 
defense, the raising of money directly for the pur¬ 
poses of the General Government by customs du¬ 
ties and other methods of taxation, and the estab¬ 
lishment of a central seat of government exclusively 
under Federal control for the conduct of the opera¬ 
tions of the General Government. The matters 
that were left to the States included the great mass 
of subjects on which governmental action is usually 
invoked and exercised—such as the regulation of 
all rights of property and of all personal rights, the 
regulation of the domestic relations, the adminis¬ 
tration of estates, and the ordinary criminal law— 
everything, in fact, except those matters which con¬ 
cerned the general welfare of the Union. For the 
general purposes so indicated the people of the whole 
United States, as one undivided people, with prac¬ 
tical although not entire obliteration of State lines, 
were constituted a distinct sovereignty and an inde¬ 
pendent nationality; for all tlie other purposes the 
States remained and continued equally sovereign, 
distinct and independent nationalities. 

The result, therefore, was the establishment of 
two separate and independent but co-ordinate sov¬ 
ereignties, each operating within the same territory, 
each independent of the other in its operations. 


182 


HISTORY OF THE DEVELOPMENT OF 


each supreme and sovereign in its own sphere, the 
one supplementing the other, and both occasionally 
concurrent, hut the concurrence, whenever it occurs, 
being necessarily such that the central government 
must he supreme whenever it assumes to act. 

But this very same division of power, it will be 
observed, and we have already so stated, was sub¬ 
stantially established by the Articles of Confedera¬ 
tion, and was not new in the Federal Constitution. 
The absolutely new feature of the Federal Consti¬ 
tution was the organization of a separate and inde¬ 
pendent governmental system to carry these powers 
into effect. But the establishment of such an inde¬ 
pendent governmental system in such manner as to 
avoid as far as possible collision with the States, 
and at the same time to provide as far as possible 
safe instrumentalities for the determination of such 
collisions, if they should occur, was a work of the 
greatest delicacy and difficulty, although its very 
simplicity, as it now appears to us, is the best evi¬ 
dence of the wonderful constructive genius of the 
framers of the Constitution. 

Before the establishment of our constitution the 
extension of republican institutions over a large ex¬ 
tent of territory was a question of grave doubt. The 
ancient Eepublics of Greece were territorially very 
small States, only cities, in fact, with small sur¬ 
rounding and dependent agricultural districts. The 
republican States of Phoenicia were of the same 
character. So was Carthage, so was Kome. And 
even if the two last-named became the possessors 
of great empires, their republican institutions were 
extended to their possessions only to a qualified 


CONSTITUTIONAL AND CIVIL LIBERTY. 183 


extent. The whole territory of the Commonwealth 
of Israel was not much larger than our State of 
Maryland. The Swiss Cantons were only small 
agricultural communities, and the States of Holland 
were equally insignificant in territorial extent. But, 
while no one dreamed of the vast territory which 
within one hundred years was to he included within 
the limits of the United States of America, yet it 
was contemplated that they would reach an area of 
territory greater than had ever been included before 
under one republican government. Uever before 
had republican institutions been attempted on so 
large a scale. But by means of the dual system of 
State and Federal Government, through the trus¬ 
teeship of the Federal Government by which vast 
outlying territory, not included at all or only vaguely 
included within the limits of the original thirteen 
States, has been transformed into thirty-two addi¬ 
tional Commonwealths, coequal with the original 
members of the Union, in consequence of which 
our States now number forty-five, and may soon 
amount to fifty, and the domain of the great cen¬ 
tral Commonwealth has been simultaneously and 
concurrently extended, the principles of Civil Lib¬ 
erty have been developed on a grander and larger 
scale than ever before in the history of mankind. 
The dual system makes possible the concentration 
of power and strength in the Federal Government 
for Federal purpose, and the difiusion of power and 
strength throughout the States in the interest of 
personal liberty and local self-government. While 
it makes the central government strong and power¬ 
ful, it makes Csesarisni and military usurpation im- 


184 


HISTORY OF THE DEVELOPMENT OF 


possible, throuo^h which all Republics have fallen; 
because every State and every State capital would 
be a rallying-point for opposition to any such usur¬ 
pation. The system is not Avithout its difficulties, 
perhaps not without its weaknesses; but its advan¬ 
tages are enormous, and it is, beyond all question, 
the best that has ever yet been devised for the co¬ 
existent ordination of personal liberty and govern¬ 
mental power—in other Avords, for the establish¬ 
ment of Civil Liberty. 

It has been sought by some other nations to imi¬ 
tate our dual system. Some of the Spanish Amer¬ 
ican States have made the attempt, but unsuccess¬ 
fully. Either the prerequisite elements, independent 
States, with similar free institutions, out of Avhich 
to construct a Federal organization, have been Avant- 
ing, or, if such elements have been present, the 
forces of disorganization and disorder, which have 
caused so much turmoil in those States, have proved 
too potent a factor against the permanent establish¬ 
ment of the dual system. The nearest approach to 
the system that has been made by any other nation 
is the present German Empire, and while the per¬ 
manence of that Empire, under its present organi¬ 
zation, is not by any means an assured success, it is 
not improbable that in some shape the Federal Sys¬ 
tem will be perpetuated in that country. The ele¬ 
ments there exist upon Avhich the superstructure 
may in course of time be built. There has been agita¬ 
tion for the establishment of the System as a method 
for the reorganization of the vast Colonial Empire 
of England, but it is safe to say that the scheme 
will not be realized. It is more probable that, in 


CONSTITUTIONAL AND CIVIL LIBERTY. 185 


the dismemberment of that empire, which is inevi¬ 
table, some of its largest provinces, such as Canada, 
Australia, and Cape Colony, will adopt the dual or 
Federal System, for which the conditions are there 
favorable. 

There is a third peculiar and characteristic feature 
of our governmental system to which I would refer— 
the triple division of ordinary power between the 
legislative, the executive, and the judicial branches 
of government. This feature also is of distinctly 
American origin, although such division of power 
and governmental administration may he said to 
have existed in England and elsewhere in a rudi¬ 
mentary and undeveloped condition. 

Montesquieu, the celebrated French writer, in liis 
Work L'Esprit desEois^ published in the year 1748, 
twenty-eight years before the promulgation of our 
Declaration of Independence, and about forty years 
before the promulgation of our Federal Constitu¬ 
tion, seems to have been the first writer or states¬ 
man to have distinctly laid down the doctrine of 
the propriety, and even necessity, of this division, 
which he illustrated by the practice in England. 
But in England the division was then, and is now, 
exceedingly imperfect, and the French publicist, 
even at the time at which he wrote, might have 
found a better illustration in the rule and practice 
which had prevailed in our American Colonies for 
many years, resulting from the development of our 
Colonial Charters. But although tlie division had 
practically prevailed in all the Colonies for many 
years under their Colonial organization, it seems 
first to have been distinctly recognized and enunci- 


186 


HISTORY OF THE DEVELOPMENT OF 


ated as a fundamental principle of government in 
the Constitution drawn up for the State of Virginia 
under the guiding inspiration of Thomas Jefferson 
immediately after the Declaration of Independence 
in 1776. The other States all followed in the same 
line, and all of them more or less distinctly incor¬ 
porated this principle into their Constitutions. The 
framers of the Federal Constitution only followed 
the example of the States in this regard; but it was 
the same men who formulated the State Constitu¬ 
tions of the time and the Federal Constitution. 

This was undoubtedly a new departure and a 
novel expedient in the history of government. 
There was no precedent for it among the nations of 
the world. In the rude councils of the old Teu¬ 
tonic tribes, from which it has been foolishly sought 
to derive our civil institutions, as among all other 
rude tribes, ancient and modern, all the operations 
of government, where there was not despotic chief¬ 
tainship, were determined in general assembly. 
There their legislation was enacted, their resolutions 
for tribal action taken, and their personal contro¬ 
versies determined. More civilized communities 
have always found it necessary to separate these 
agencies of government to a greater or less extent; 
and the greater or less separation has always been 
an indication of the greater or less extent of the 
prevailing civilization and Civil Liberty. In Greece 
and Rome there was some such separation. In 
Athens especially, under the wise legislation of 
Solon, the distinction prevailed of a Boule or Coun¬ 
cil to enact laws, an Archon to execute them, and 
the High Court of the Areopagus to expound them 


CONSTITUTIONAL AND CIVIL LIBERTY. 187 


and to administer justice. Similarly and for simi¬ 
lar purposes, Kome had its Senate, its Consuls, and 
its Praetors. The Barbarian conquerors of the Ro¬ 
man Empire and the feudal monarchies which they 
erected again confounded these distinct branches 
of government; and the fact that the contest be¬ 
tween the people and the feudal classes in Europe, 
and especially between the people and the feudal 
monarchs, is not yet at an end, although the end 
appears to be in sight, is both the reason and the 
evidence for the absence as yet of a well-defined 
distinction in Europe between these different 
branches of government. 

In England the sovereign has been reduced to a 
mere cipher; and there is, in fact, no such thing as 
an executive branch of the government, independent 
and distinguished from the legislative branch. The 
executive power in that country is vested in the 
Cabinet, which is only a Committee of Parliament, 
indeed only a Committee of the House of Com¬ 
mons, holding its position only at the sole pleasure 
of the House of Commons. In other countries of 
Europe, where Constitutional government now pre¬ 
vails, the general tendency is to reach existing Eng¬ 
lish conditions. The contest between the monarchs 
and the people is to some extent in progress; and 
as long as the monarchs are permitted to reign, the 
inevitable result of the triumph of Constitutional 
principles is to vest executive authority in a Cabinet 
selected from the legislative body and responsible 
to it. Of course, France and Switzerland, as re¬ 
publics, approach more nearly to our own standard ; 
and it may he added that Germany also, for radi- 


188 


HISTORY OF THE DEVELOPMENT OF 


cally different reasons, is disposed in this regard to 
approximate our theory of government, as it is to 
adopt our dual system of State and Federal Gov¬ 
ernments. IS^owhere, however, as yet, has the sep¬ 
arate and independent existence of the Judiciary as 
a co-ordinate branch of governmental organization 
been recognized as it has been in onr country. In 
England there is in the matter of the courts espe¬ 
cial evidence of the falsehood, or fiction, as it may 
be euphemistically called, which pervades the whole 
social and political organization of that country, in 
the fact that the courts are in theory the courts of 
the sovereign, deriving all their authority from him 
and responsible to him alone, and yet in fact deriv¬ 
ing all their authority from Parliament and respon¬ 
sible only to that body, a part of which, the House 
of Lords, has, or until recently has had, an appellate 
jurisdiction over the courts. 

This co-ordinate division of governmental power 
has produced with us very remarkable, and on the 
whole exceedingly beneficial results. It has secured 
the thorough independence, freedom of action, and 
stability of the executive branch, without any im¬ 
pairment of the paramount legislative authority of 
the legislature. But, most of all, it has raised the 
judiciary to a position of power and dignity which 
it has never yet enjoyed elsewhere; unless, perhaps, 
there be an exception for a brief period of its exist¬ 
ence in the Areopagus of Athens. In its nature, 
the judiciary is the weakest of the three branches 
of government. It has neither the power of the 
purse nor that of the sword; nor has it any retain¬ 
ers to subserve selfish purposes. But in the power 


CONSTITUTIONAL AND CIVIL LIBERTY. 


189 


vested in it in onr country, as an independent 
agency of the people, to expound the law, to settle 
personal controversies without any suspicion of in¬ 
fluence from either legislative or executive sources, 
and to determine even whether the legislative and 
executive branches of government may not have 
transcended the lawful authority vested in them hy 
the people under the organic law, the judiciary is 
in possession of an authority Avhich operates not 
only as a check upon hasty, inconsiderate, and un¬ 
just legislation, but likewise as a remarkable guar¬ 
anty of individual freedom. For in the peculiar 
prerogative of our American Judiciary to declare a 
legislative enactment null and void, whenever in 
their opinion it conflicts with the fundamental law 
as laid down in the Constitution, and to relieve 
against executive action, whenever such action is 
unauthorized by the same fundamental law, there is 
found an excellent safeguard of true Civil Liberty. 
Oppression has as frequently been accomplished 
under the forms of law as by the disregard of law. 
Indeed, it is the favorite guise of tyranny to pro¬ 
ceed under the forms of law; while it has never yet 
been heard of that the repeal of a legislative enact¬ 
ment has led to oppression and injustice. It has 
become almost an axiom in jurisprudence and in 
the science of government that the best legislation 
is that which repeals previous legislation. The 
world is too much governed anyhow ; and the idea 
has become entirely too prevalent that the evils that 
afflict society can all he cured by legislation. So, 
when at the suit of a citizen who claims to be in¬ 
jured thereby, which is the only mode in which it 


190 


HISTORY OF THE DEVELOPMENT OF 


can be done, a legislative enactment is decreed to 
be null and void as contravening the higher law of 
the Constitution, or an act of the executive is held 
to be of no validity or binding force because un¬ 
authorized by law, the judiciary, in so decreeing, re¬ 
lieves the citizen from a usurpation of power, and 
thereby distinctly maintains and advances the cause 
of Civil Liberty and personal freedom. 

To the earnest and thoughtful student of our 
Constitutional system this extraordinary prerogative 
of our Judiciary has commended itself as one of the 
wisest provisions therein inserted by its framers. 
The development of the prerogative, while capable 
of abuse, like all things human, only enhances ad¬ 
miration of its wisdom. It is almost impossible 
that it should not conduce to the preservation and 
perpetuation of Civil Liberty. 

A subordinate, but scarcely less important feature 
of our system, although one not entirely original 
with us, is the subdivision, universal with us, of the 
legislative body into two chambers,—designated in 
our Federal or F’ational system as the Senate and 
the House of Kepresentatives, and in the States 
usually as the Senate and House of Delegates. 

Theorists, and especially French theorists, have 
generally argued for the greater etRciency, sim¬ 
plicity and reasonableness of a single legislative 
chamber. But there is practical wisdom in the 
scheme of a second chamber. The “ sober second 
thought,” which should characterize all legislative 
determination,-finds its best illustration in a second 
chamber, in which the action, perhaps hasty and 
immature, of a first chamber may be revised and 


CONSTITUTIONAL AND CIVIL LIBERTY. 


191 


corrected. Experience shows the value of such re¬ 
vision and correction; and the occasional inconve¬ 
niences of the system cannot for a moment be per¬ 
mitted to weigh against its immense advantages. 
If desirable legislation occasionally fails through 
conflict or misunderstanding between the chambers, 
this is not an unmitigated evil. Public sentiment 
will in due time enforce the enactment of desirable 
legislation, while for undesirable legislation the ex¬ 
istence of two co-ordinate chambers is an admirable 
expedient for prevention. And prevention of leg¬ 
islation is rarely an evil. The advantages of two 
chambers in the ordinary legislative body has been 
demonstrated too frequently to permit with us any 
further question of the superiority of the system. 

There are traces of this double system to be found 
in the history both of Athens and of Pome. Stu¬ 
dents of the history of Pome especially are familiar 
with the fact that, although the Poman Senate, 
composing a single legislative chamber, was the or¬ 
dinary legislative body of the Poman Pepublic, yet 
there were some matters of legislation that were re¬ 
quired, after passing the Senate, to be approved in 
the Comitia or General Assembly of the people, be¬ 
fore they became laws. And the veto power, so 
well known among us, which gives a qualifled 
power of disapproval to the Chief Executive and 
thereby adds a third constituent element to the leg¬ 
islative body, we know quite well to have been de¬ 
rived to us from the Poman institutions. During 
the Feudal Ages, whenever the feudal sovereigns 
sought counsel or solicited pecuniary assistance for 
their enterprises, they called to their courts both 


192 


HISTORY OF THE DEVELOPMENT OF 


the feudal barons and the higher clergy of the 
Church; and these different orders of the State, 
although they sometimes sat together as one body, 
usually conducted their deliberations separately and 
constituted two separate chambers. Afterwards, 
wdien representatives of the people were summoned 
by the monarchs to their councils, and Three Es¬ 
tates, as they were designated in France, were rec¬ 
ognized as constituting the body politic, each Estate 
usually met as a separate chamber. In England, at 
first, only the barons and the bishops were sum¬ 
moned by the king to his councils, and these some¬ 
times deliberated separately and sometimes together. 
When, subsequently, the knights were summoned as 
representatives of the shires or of the people, there 
is evidence that, in the first instance, all three of 
these orders met together, hut very soon resolved 
themselves into separate chambers, the bishops and 
barons coalescing in one chamber, and the knights 
constituting a second chamber. From the usage 
so instituted has been derived the present arrange¬ 
ment of the English Parliament, with its House of 
Lords composed of peers and bishops, and its House 
of Commons composed of duly elected representa¬ 
tives of the people. 

Bnt while all these circumstances may have in¬ 
fill enced the framers of onr State and Federal Con¬ 
stitutions in the establishment of legislative bodies 
with two chambers, it would be a grave mistake to 
assume, as some have done, that in this matter we 
have simply followed the example of England. The 
resemblance of our system in that regard to that at 
present in England is purely accidental; and the 


CONSTITUTIONAL AND CIVIL LIBERTY. 193 


difterences between the two systems in other re¬ 
spects are radical. The Colonies already had the 
system of two Chambers, or at least the basis of it, 
from the beginning, growing out of their peculiar 
organization. The substantial legislative power, it 
is true, was vested in a single General Assembly, 
elected directly by the people; hut there was like¬ 
wise in each Colony a Council, vested with limited 
legislative authority, and authorized to co-operate 
with the Governor and the General Assembly in 
the general management of public affairs. Here 
undoubtedly was the source of our legislative sys¬ 
tem. It required no great change to convert the 
Council into a full co-ordinate branch of the legis¬ 
lature. Indeed, as we have seen, in one State, 
Rhode Island, no change whatever was required. 
And the perpetuation of the name of the Council, 
yet given in several of the old thirteen States to the 
smaller in number of the two chambers, is evidence 
of the origin of the arrangement. There can, there¬ 
fore, be no reasonable doubt that when, upon the 
Declaration of Independence, the States of the 
Union expanded their Colonial Charters into Con¬ 
stitutions, as all but Rhode Island and Connecticut 
did, the establishment in all these Constitutions of 
legislative bodies, each composed of two substan¬ 
tially co-ordinate houses, was no more than the ex¬ 
pansion and enlargement of a governmental organi¬ 
zation already in existence. 

When, soon afterwards, the work of framing the 
Federal Constitution was undertaken, it was only 
natural that the Delegates to the Constitutional Con¬ 
vention, who had participated in the formulation of 
13 


194 


HISTORY OF THE DEVELOPMENT OF 


their own several State Constitutions, should seek 
to adopt the same system for the new government 
which they proposed to found. Under the Articles 
of Confederation, it is true, the Congress had only 
one chamber; but that Congress was no more than 
it purported to be, a Congress of Delegates from 
sovereign and independent States confederated for 
a specific purpose. The Union under those Articles 
was merely a Confederation, and not a Govern¬ 
ment; and the purpose was to make the Uew 
Union, within the scope of its powers, a separate 
and independent Government, with all its own gov¬ 
ernmental machinery for the accomplishment of its 
purposes. It was proposed to give it an independ¬ 
ent executive and judicial authority, as well as to 
remodel its legislative organization. How to ac¬ 
complish this was the most difficult problem, proba¬ 
bly, that the Constitutional Convention was called 
upon to solve. 

The basis for the solution was in existence; they 
did not have to go very far to seek it. And yet the 
adaptation which they made was a most ingenious 
and admirable piece of statesmanship. The scheme 
is so familiar to us now by its comparatively long 
operation in practice, that we can scarcely appre¬ 
ciate what profound statesmanship and earnest pa¬ 
triotism it required to elaborate the existing ele¬ 
ments into the smooth and simple scheme which we 
noAV possess. In fact, the very simplicity of the 
scheme, as it appears to us, is the best evidence of 
the statesmanship that was required for its elabora¬ 
tion ; for it is the simplest mechanism that requires 
the greatest genius for its evolution from varied ex- 


CONSTITUTIONAL AND CIVIL LIBERTY. 195 


isting conditions. It was resolved to combine the 
idea of a House of Delegates, or a House of Rep¬ 
resentatives, as they elected to call it, to be chosen 
by the people at large of all the States as one people, 
without much reference to State lines and upon the 
general basis of population, with a select Council, 
more limited in numbers, to be called the Senate, 
as the similar body in several of the States had 
already been called, in imitation of the Senate of 
the Roman Republic, which should represent the 
States as States with equal voice, which should be 
composed of Senators to be chosen by the legisla¬ 
tures of the several States, two by each State, and 
which should serve the purpose of the old Colonial 
Councils in advising the Chief Executive in the 
matter of the appointment of all officials and the 
making of treaties with foreign powers, and should 
at the same time be an equal participant with the 
House of Representatives in the enactment of ordi¬ 
nary legislation. By the longer term for which it 
was provided that the Senators should be chosen, it 
was sought to give to the Senate of the new organi¬ 
zation something of the permanence of the old 
Colonial Councils, and thereby also to insure the 
policy and administration of the General Govern¬ 
ment from sudden and capricious change; while 
the House of Representatives, intended more closely 
to represent the people at large, like the Colonial 
House of Delegates, was to be wholly renewed at 
brief intervals. The scheme, as we have stated, is 
so familiar to us now that we can scarcely under¬ 
stand what wisdom was required for its concep¬ 
tion. 


196 


HISTORY OF THE DEVELOPMENT OF 


It has been sometimes sought to show that our 
American Senate had its protot^^pe in the English 
House of Lords. Only superficial observers attempt 
so to argue. Ho two bodies could well be more 
unlike in their origin, their composition, and their 
purpose. Whatever resemblance there is, if any, 
is purely accidental; and we fail to perceive that 
there is any resemblance whatever, except that the 
House of Representatives and the English House of 
Commons more nearly approximate each other in 
their methods, and the Senate, like the House of 
Lords, is more orderly, systematic, and deliberate 
in its course of procedure. 

Such is. the structure with which we have sought 
to crown the stately edifice of Civil Liberty. It is 
the work, not of Utopian theorists, hut of true and 
wise statesmen. Our forefathers had come out of 
the land of feudal tyranny and bondage as had as 
that of the Pharaohs; they came into the wilder¬ 
ness, into the virgin forests of the Hew World, to 
seek the God-given freedom of which they had been 
deprived by the feudal tyrants of the Old World 
and to renew the law of Sinai and of Calvary; and 
out of the conditions which they established in 
their new homes they and their descendants have 
sought to work out the grand scheme outlined upon 
Sinai by Jehovah for Israel, by the Crucified Haza- 
rene upon Mount Moriah for all humanity. Our 
social and governmental system is the outgrowth of 
our colonial conditions; and our forefathers of the 
so-called Revolution were not revolutionists, hut de¬ 
fenders of the social order and of human liberty 
against one of the last attacks of expiring Feudalism 


CONSTITUTIONAL AND CIVIL LIBERTY. 197 


upon the rights of man. They made no violent 
change; they merely resisted aggression. And 
when the aggression had been repelled, they recon¬ 
structed our civil institutions in the light of expe¬ 
rience, but with a wisdom of arrangement that ap¬ 
peals to the admiration of the ages. 

They reconstructed the edifice of Civil Liberty 
in the massive simplicity of the old Doric temple of 
the Parthenon, devoid of the semi-barbaric splendor 
of the Gothic feudal castle. 


198 


HISTORY OF THE DEVELOPMENT OF 


LECTURE VIL 

THE REACTION OF AMERICA UPON EUROPE. 

“The guns of Concord have reverberated around the world.” 

So said our illustrious orator and statesman, 
Daniel Webster. He meant to state that the prin¬ 
ciples, enunciated in our Declaration of Independ¬ 
ence and sought to be practically enforced in our 
Constitutional system of government, have now 
been accepted by the civilized world as the true 
evangel of Civil Liberty. The reverberation was 
much weaker in his day than it is in ours. It has 
gathered strength and volume as it has rolled on, 
until all the nations of Europe, except Russia and 
Turkey, which should be regarded as Asiatic rather 
than European, have been awakened to the sound; 
and even the ancient Feudal Empire of Japan on 
the remote confines of Asia has been startled by it 
from the slumber of ages to the opening of a 
brighter day. 

The culmination of the heroic contest for Civil 
Liberty in America created a profound impression 
throughout Europe. England and France espe¬ 
cially were moved by it. England, the batfied con¬ 
testant in the struggle, was more benefited than in¬ 
jured by the failure; for she learned by it a lesson 
which has proved to her of inestimable value. But 


CONSTITUTIONAL AND CIVIL LIBERTY. 199 


in France was the first decisive response in Europe 
to the principles of the American Revolution. The 
soldiers of France, the associates of La Fayette and 
Rochambeau, the men who fought by the side of 
Washington at the crowning struggle at Yorktown, 
went hack to Europe fired with all the zeal of con¬ 
verts to the cause which they had espoused so vig¬ 
orously and successfully in the Yew World. The 
French Revolution was the first echo in Europe of 
our American Revolution. 

But how can we regard that wild orgy of crime 
and carnage as the echo of our American Revolu¬ 
tion ? Can Danton, Robespierre and Marat have 
been the legitimate successors of George Washing¬ 
ton, Benjamin Franklin, and Thomas Jefferson? 
Can the spirit of the patriot souls who bore the 
banner of our young Republic from Valley Forge 
to Yorktown he said to have animated that frenzied 
Parisian mob which drank, with the ghoulish glee 
of vampires, the blood of France’s noblest sons and 
fairest daughters ? More appropriate to that savage 
uprising of an infuriated nation than comparison 
to the orderly and beneficent movement in our own 
country is the description which the great Scottish 
Poet gives of the contest between Clan Alpine and 
the forces of the Earl of Mar: 

“Within that dark and narrow dell, 

At once there rose so wild a yell, 

As all the fiends from Heaven that fell 
Had pealed the banner cry of hell.” 

That bloody and fearful Revolution was the 
storm bursting in all its wrath, sweeping tower and 
town before it, laying the mighty forest low, and 


200 


HISTORY OF THE DEVELOPMENT OF 


leaving death and desolation in its train. The po¬ 
litical atmosphere had been charged with the im¬ 
pure vapors of a thousand years of feudalism, 
absolutism, and licentiousness. The lascivious wan¬ 
tonness and gross frivolity of the most corrupt 
court in Europe, the brutal degradation of an effete 
aristocracy, the corruption of the clergy, the grind¬ 
ing taxes imposed upon the peo^de from which the 
nobles and the clergy escaped, the all-pervading 
contamination of Yoltaireanism, had so polluted 
the political atmosphere of France that a storm of 
terrific intensity seems to have been required to 
clear away the murky vapors and to purify the ele¬ 
ments. And if, in the course of that terrific storm, 
the electric bolt struck castled crag and peasant 
home alike, and if blood flowed like water till the 
Seine and the Rhone and the Loire ran red to the 
sea, and if saints and heroes, as well as ruffians and 
demagogues, were sacrificed alike, a horrible holo¬ 
caust to the Moloch of a demon Republic; and if, 
in addition to all this, a lurid star in the train of the 
storm shot across the horizon and flashed its baleful 
light upon the startled nations and scattered its rain 
of fire over Europe from the Bridge of Lodi to 
Moscow’s towers, only to set at last in darkness be¬ 
hind the hills of a lone island in the Southern 
Ocean, this was only God’s Providence to evolve 
from the criminal past a newer and a better day. 
The Almighty had found it necessary to wash out 
in the waters of the Deluge the crimes of the An¬ 
tediluvian World. He found it necessary to wash 
out in blood the scarcely less enormous crimes of 
Bourbon France and Feudal Europe. Feudalism 


CONSTITUTIONAL AND CIVIL LIBERTY. 20l 

and Absolutism had sunk in iniquity beyond the 
power of reform; their destruction was required; 
and that frenzied war of all the elements was per¬ 
mitted in the councils of Divine Providence to effect 
their destruction and the restoration to the people 
of their just heritage of Civil Liberty. The hor¬ 
rors of the French Revolution were the bloody re¬ 
venge of the people for the outrages and oppres¬ 
sions of Feudalism, and for the butcheries of the 
brutal savages who had established that infamous 
system on the ruins of the Roman Civilization. 

The French Revolution was a terrible necessity. 
When the gangrene of political corruption has so 
far eaten into the vitals of the body politic as to be 
beyond the reach of ordinary treatment for reform, 
amputation, and the knife, and the most heroic 
remedies are required to be used. Violence begets 
violence; excess necessarily leads to excess. Force 
and fraud and violence are the progenitors of a 
bloody revenge. To the careful reader of the his¬ 
tory of Europe antecedent to the French Revolu¬ 
tion the wonder is, not that the Revolution occurred 
with the intensity which characterized it, but that 
it did not come earlier and with greater violence. 
I am not seeking to offer any palliation for the 
awful atrocities of that outbreak, but to account for 
them. For those atrocities the blind votaries of 
Feudalism and Feudal Monarchy are more respon¬ 
sible than their maddened victims, the heirs of cen¬ 
turies of oppression and wrong. 

The French Revolutionists proclaimed a Repub¬ 
lic, and their motto was: “ Liberty, Equality, and 
Fraternity.” But Liberty they sought to enforce 


202 


HISTORY OF THE DEVELOPMENT OF 


by a reign of terror, Equality by bringing to the 
scaffold all that was good and great in France, and 
Fraternity by deluging the land with civil strife and 
bloodshed. Their Republic was a demoniac cari¬ 
cature of Republicanism. The model which they 
set up for themselves was not that which Jehovah 
had ordained for Israel, but its pagan imitation in 
Athens and Rome; and they sought wholly to 
eliminate from their institutions all that had ever 
given vitality to republicanism, the doctrines pro¬ 
claimed upon Sinai and the Mount of Olives, the 
doctrine of the Fatherhood of God and of the 
Brotherhood of Man. They proscribed Christi¬ 
anity, and would have eradicated religion. This 
was the frenzy of madness, not the rational asser¬ 
tion of human right. And yet the result was that 
the storm did purify the atmosphere, notwithstand¬ 
ing the savage desolation which it wrought; that 
not otherwise, in all human probability, could the 
abuses of feudal insolence and monarchical tyranny 
have been obliterated; that it thereafter became 
possible to reduce to practice the theory of “ Lib¬ 
erty, Equality, and Fraternity;” and that humanity 
now breathes more freely in the sunlight of a better 
day. 

For twenty-five years the storm raged; and all 
Europe felt its force. It swept over all the nations. 
Through all the nations the adherents of the old 
social system of oppression and wrong, supposed by 
them to have been consecrated by thirteen centuries 
of existence, gathered themselves together to resist 
the new-born spirit of freedom. France had thrown 
down the gage of battle to all the nations. Mon- 


CONSTITUTIONAL AND CIVIL LIBERTY. 203 

archy and aristocracy, in self-defence and in defence 
of what was assumed to be the cause of good order, 
took it up. The fierce democracy, which had ruth¬ 
lessly demolished the feudal castles of France and 
brought to the block the head of the last of the long 
line of Hugh Capet, threatened a similar fate to all 
the monarchs of Europe and to the political and 
social system which had grown up around them. 
From Moscow to Cadiz, from the Baltic to the 
Adriatic, the storm swept, turned and returned, 
tore the social system to tatters, blotted out all the 
ancient landmarks of the European political sys¬ 
tem ; and the work of destruction was almost com¬ 
plete when it spent itself at last on the plains of 
Waterloo. 

We ourselves were twice for a time on the edge of 
that storm. The insolence of France on one occasion 
almost brought us to the verge of hostilities with 
her, and so far that it was deemed expedient to call 
the patriot sage of Mount Vernon from his honored 
retreat, and to entrust to him again the sword 
which he had so nobly surrendered at the end of 
our War of Independence. And again, some years 
later, the arrogant pretensions of England, then en¬ 
gaged in her gigantic struggle with Hapoleon Bona¬ 
parte, actually compelled us to engage in the three 
years’ war which we waged against her from 1812 
to 1815, which at last taught the Island Kingdom 
the lesson which it had found so difficult to learn, 
but which it then began to learn well, the hopeless¬ 
ness of a successful contest against the just rights 
of American Freedom. 

A great calm followed the storm, as generally 


204 


HISTORY OS' THE DEVELOPMENT OF 


happens. The contestants were all exhausted. The 
French Democracy had been overthrown; its ene¬ 
mies had triumphed; Absolutism seemed to be su¬ 
preme ; hut Feudalism had perished in the conflict, 
and it was impossible again to revive it. The con¬ 
test was not at an end; it was now to go on by more 
peaceful means; the arena had merely been cleared 
of obstruction to allow freer scope for its prosecu¬ 
tion. 

Upon the overthrow of Uapoleon Bonapate, the 
sovereigns of Europe and their prime ministers met 
in what is known as the Congress of Vienna to re¬ 
organize the European social and political system. 
It was found utterly impossible to reorganize that 
system entirely on the old lines; the great storm 
had swept away too much of the material of which 
it had been constructed. It was impossible again 
wholly to enchain the free spirit that had been let 
loose from its prison. Public opinion had become 
a power in Europe. The flagrant and notorious 
disregard of decency that had characterized all the 
courts of Europe in the preceding century was no 
longer possible. The absolutism of preceding ages 
was no longer possible. The nations that banded 
against Uapoleon Bonaparte had learned that the 
Revolution, of which he Avas the child, Avas not 
Avholly without justiflcation, and they had imbibed 
some of its principles. The hand on the dial of 
time might be temporarily arrested; it Avould not 
be turned backwards. The Congress of Vienna 
would perhaps have turned it backAvards, if it had 
the poAver ; but the rulers of the nations had learned 
something in the course of the contest, and they did 


CONSTITUTIONAL AND CIVIL LIBERTY. 205 


not dare to restore the political conditions that an¬ 
tedated the French Revolution. Their policy in¬ 
deed was reactionary enough for the time; but in a 
little more than a quarter of a century all the work 
of the Congress of Vienna was undone. 

The representatives of France and England in 
that Congress had counselled moderation; and it js 
mainly due to their efforts that the participants in 
the Congress failed to push the reactionary move¬ 
ment to the extreme limit which they desired. In¬ 
deed, some of them speedily regretted that they had 
not so pushed it; and three years afterwards they 
held another and more select Congress at Laibach, 
in Austria. The participants in this Congress were 
only the Emperor of Russia, the Emperor of Aus¬ 
tria, the King of Prussia, and their several prime 
ministers. They formed there what they called the 
Holy Alliance, a coalition which we would probably 
prefer to characterize by a different epithet, the 
purpose of which was to prevent the establishment 
of constitutional government in Europe, to repress 
the growing spirit of freedom, and to perpetuate the 
system of absolute monarchy upon the basis which 
then prevailed in the three nations which have been 
mentioned. 

There had been a reaction in England against the 
Tory spirit which had so bitterly antagonized Kapo- 
leon. The liberal party in that country had always 
been disposed to regard the antagonism to Kapoleon 
as a political mistake. The liberal spirit had been 
dissatisfied with the result of the Congress of Vi¬ 
enna ; it was outraged by the resolution taken by 
the Congress of Laibach. Under the influence of 


206 


HISTORY OF THE DEVELOPMENT OF 


England, France and Spain had adopted constitu¬ 
tional government of a more or less liberal character; 
and there was a movement in N^aples in the same 
direction. The Bourbons, who had been restored 
to the government of those three countries, had 
learned something by their bitter experience, 
although not very much. But the establishment 
of Constitutionalism in any shape or to any extent 
was not grateful to the Holy Alliance. Austria 
was commissioned to suppress the constitutional 
government in Naples; and Louis XYIII. of France 
was instructed to draw more tightly the reins of 
absolutism in his own country, and to send an army 
into Spain to overthrow the constitutional system 
in that country. Both commissions Avere effectively 
executed. It was not yet thought safe to over- 
throAv entirely the constitutional system in France 
itself; and that was permitted to continue, but 
under such restriction as made it exceedingly un¬ 
satisfactory. 

But the Holy Alliance was not satisfied with its 
work in the Old World. In an evil moment for it, 
it turned its attention to our Western World; and 
for the first time the influence of our American 
Union, Avhich hitherto had only been quietly exer¬ 
cised by the object-lesson which it presented to the 
nations of the earth, became formulated in such ac¬ 
tion as thereafter to revolutionize the political his¬ 
tory of the world. 

A word of explanation will be proper to show the 
conditions Avhicli now brought our country into such 
prominence in the affairs of the world. 

Spanish America had broken away from Spanish 


CONSTITUTIONAL AND CIVIL LIBERTY. 207 


rule. This included all the region from the Colo¬ 
rado River to Cape Horn—that is Mexico, Central 
America, and all South America, except Brazil, 
which had become an independent empire under a 
scion of the royal house of Portugal, to which it 
had previously belonged. The banner of revolt 
had tirst been raised in the land of the Montezumas 
in 1810 by an humble Mexican priest, Miguel Hi¬ 
dalgo ; and it was speedily followed by outbreaks in 
Venezuela, Buenos Ayres, and elsewhere in South 
America. With various vicissitudes of fortune, the 
revolted colonies succeeded in maintaining their in¬ 
dependence against the arms of Spain; and they 
all set up republican forms of government, modeled 
upon our own constitutional system, which was 
imitated by several of them almost to its minutest 
details. Unfortunately this republican movement 
in Spanish America was not always the sponta¬ 
neous will of the people, nor was it always guided 
or controlled by a sincere spirit of patriotism. It 
was too often controlled by the machinations of 
secret oath-hound organizations, to whose schemes 
and selfish intrigues are due most of the intestine 
convulsions that have since rent these Spanish- 
American communities. Their republicanism has 
too often been a scarcely disguised dictatorship. 
But at all events their pretense was the establish¬ 
ment of free institutions and constitutional govern¬ 
ment. 

When Louis XVIH. of France was commissioned 
to restore Absolutism in Spain, the commission in¬ 
cluded an avowed purpose on the part of the Holy 
Alliance to restore Spaiids revolted American 


208 


HISTORY OF THE DEVELOPMENT OF 


Colonies to their allegiance to her, and it was un¬ 
derstood that a determined effort was to be made 
to crush out the spirit of Freedom in the I^ew 
World. There was enough in the conduct of the 
secret organizations to which we have referred to 
give colorable excuse to the Holy Alliance in the 
interest of peace and good order for its interfer¬ 
ence, and there was no pretense of any purpose to 
interfere with our own country or with our own civil 
institutions. It was not apparent, indeed, that any 
interference was possible, inasmuch as England had 
by this time fully acquiesced in our independence, 
and sought no restoration of her rule over us; and 
even if she had sought it, the Holy Alliance was 
not disposed to regard her constitutional system 
much more kindly than our republican institutions, 
and had no motive, therefore, to aid her in the re¬ 
covery of her former possessions in Horth America. 
England, at the time, whether through sympathy 
with the movement for liberty in Spanish America 
or for more selfish reasons, as has been frequently 
asserted, and there seems to he good reason to be¬ 
lieve, was antagonistic to the purposes of the Holy 
Alliance with regard to the Spanish American 
States, and the schemes of the Absolutists, there¬ 
fore—at all events for the time being—ignored both 
England and the United States. But both England 
and the United States deemed their interests to be 
involved, although only the latter moved openly 
in the matter. 

In the year 1822 the Liberal party had acquired 
power in England, and George Canning had be¬ 
come Secretary of State for Foreign Affairs. After- 


CONSTITUTIONAL AND CIVIL LIBERTY. 209 

wards he became Prime Minister. England has 
had many statesmen who made more reputation in 
the world, never an abler or more just one. Under 
the lead of his predecessor, the infamous Castle- 
reagh, England had been, if not a subservient tool, 
at least a passive spectator of the schemes of the 
Holy Alliance. Canning broke away from that 
policy of subserviency, and caused his country to 
embark upon a course of liberalism unknown to 
previous statesmen. The period of his ministry 
(a.d. 1822-27) was the true era of English Consti¬ 
tutional and Civil Liberty. He was the first of 
English statesmen to acquiesce heartily and unre¬ 
servedly in the independence of the United States, 
and to seek to find in us an ally, rather than an 
enemy. He paved the way for the removal of the 
religious disqualifications which, up to his time, 
had made England’s claims to Civil Liberty a 
hideous mockery, and he appropriately closed his 
career by procuring the freedom of Greece from 
Turkish misgovernment and Mohammedan bru¬ 
tality, in opposition to the wishes of the old hide¬ 
bound Tory aristocracy. He was a man of the peo¬ 
ple, and not a scion of old nobility, and his admin¬ 
istration was the beginning of a new era in English 
politics. He was clear-sighted enough to see that 
the schemes of the Holy Alliance were an anachron¬ 
ism in the nineteenth century, and that they would 
probably lead, if unchecked, to a bloodier revulsion 
than the French Eevolution. Whether through 
principle or through policy, he resolved to thwart 
those schemes, and he turned to America to aid 
him in his purpose. 


14 


210 


HISTORY OF THE DEVELOPMENT OF 


James Monroe was then President of the United 
States. To onr minister to England at the time, 
Richard Rush, Canning intimated the purposes of 
the European sovereigns, the ultimate danger to 
our own institutions if they should persist in them, 
and the disposition of England to co-operate with us 
to check their plans. The intimation was promptly 
communicated by Rush to our Government, and 
President Monroe as promptly took occasion to 
make the statement of our American policy, that 
we would view with disfavor and alarm any at¬ 
tempt of the Holy Alliance to extend their system 
to our Western Continent. This was the declara¬ 
tion of American policy which has become so fa¬ 
mous as the Monroe Doctrine. It was a mere 
declaration of policy, but it sufficed to check the 
schemes of the Holy Alliance, to secure the inde¬ 
pendence of Spanish America, to thwart the pur¬ 
poses of the Holy Alliance to a considerable extent 
even in Europe, and to encourage the friends of 
Freedom everywhere throughout the world. It 
was an explicit declaration that the purposes for 
which America would seem to have been reserved 
in the councils of Divine Providence should not be 
interfered with by Sclavonian despotism or Teutonic 
Feudalism. And when it was said to the despots 
of Europe, ‘‘ Thus far shall ye go, and no fartherf 
their prestige was at an end, their power was 
broken. The scales fell from the eyes of their 
own people. Both monarchs and people fully saw 
that a young giant had arisen in the West, with 
whom they would hereafter have to count in any 
movement involving the question of human right 


CONSTITUTIONAL AND CIVIL LIBERTY. 211 


and civil liberty. Thereafter the reaction against 
Absolutism in government went on steadily in Eu¬ 
rope, and England became, and generally remained, 
the leader in the movement. 

Absolutism, as we have seen, had become domi¬ 
nant in Europe after Waterloo, almost as a neces¬ 
sary consequence of the exhaustion consequent upon 
the overthrow of the military power of France. It 
was, it is true, a great mitigation of the Feudal 
System of preceding ages, but still it was Abso¬ 
lutism, wholly unsuited to the great enlightenment 
which had resulted from the commotion of the 
French Revolution. The reaction against it nec¬ 
essarily came; it came sooner even than had been 
expected or anticipated. 

England had participated largely in the overthrow 
of French ideas. English Feudalism had ever been 
the bitter foe of Freedom. And yet England, 
among the first of the European nations, tacitly ac¬ 
cepted the theories which she had contested and 
combated. A curious divergence had separated 
her from the other European nations in previous 
centuries. The shock of French Revolutionary 
ideas, the decapitation of one monarch, the de¬ 
thronement of another, the proclamation of the 
rights of the people as against the arbitrary rule of 
monarchy, had all been anticipated in England up¬ 
wards of a century and a half before the great 
French outbreak. That movement, it is true, had 
spent itself in its own excesses and in its own vio¬ 
lence. But, as the result of the expulsion of the last 
of the Stuarts, the English Aristocracy had wholly 
subordinated the monarchy to itself, while on the 


212 


HISTORY OF THE DEVELOPMENT OF 


continent of Europe, on the contrary, the circum¬ 
stances had all tended to subordinate the aristocracy 
to the monarchy, and to render the latter absolute. 
These were merely concurrent developments of 
Feudalism, in which the people, as such, had no 
voice. But Aristocracy is nearer to the people 
than Monarchy, and must necessarily deal in popu¬ 
lar methods. ^Necessarily, therefore, although it is 
itself the enemy of Freedom as much as monarchy 
is, its development, in course of time, must lead to 
the development of popular right. This is pre¬ 
cisely what happened in England. But to George 
Canning, more than to any other English states¬ 
man, is due the credit of having finally and defi¬ 
nitely caused England to embark in the cause of 
Civil Liberty at home and abroad. 

Canning died in 1827, in the zenith of his power 
and usefulness, and upon his death the pendulum 
temporarily swung backwards. The adherents of 
the Holy Alliance, availing themselves of the great 
name and rather mediocre civil talents of the victor 
of Waterloo, were entrusted with the reins of gov¬ 
ernment. But in the same year, a.d. 1827, there 
appeared upon the scene of English politics the 
greatest popular leader the world has ever known 
since the days of Pericles, and to whom, more than 
to any other one man of the century, England and 
the world are indebted for the modern development 
of Civil Liberty in Europe, the illustrious Irishman, 
Daniel O’Connell, whose agitation in behalf of Civil 
Liberty is without parallel in the annals of the world, 
lie took up the cause where George Canning had 
left it, and for twenty years he stood forth before 


CONSTITUTIONAL AND CIVIL LIBERTY. 213 


Europe and the world the leader of a movement 
without immediate result for its immediate pur¬ 
pose, the liberation of his own unhappy country 
from the hated yoke of England, but of incalculable 
benefit to the cause of Freedom elsewhere through¬ 
out the world. For the twenty years over which 
his agitation extended, an agitation most extra¬ 
ordinary in being entirely peaceable and proposing 
only peaceful means to accomplish its purposes, no 
name was more widely or better known, either in 
Europe or America, than that of the so-called Irish 
Liberator, Daniel O’Connell. 

A Roman Catholic in religion, and as such dis¬ 
qualified by existing law from admission to the 
English Parliament, of which none hut members of 
the English Church, by law established, were then 
permitted to become members, he was elected to 
that Parliament in defiance of the statute, and he 
knocked at the gates of Westminster Hall for ad¬ 
mission, but was refused. His daring act, however, 
led to the political emancipation in the same year 
(a.d. 1828) of the various dissenting Protestant de¬ 
nominations, so that in England, in the broad day¬ 
light of the nineteenth century, the followers of 
John Calvin, John Ivnox, William Penn and John 
Wesley owed their civil and religious freedom and 
their restoration of the right of citizenship to the 
asritation inauo;urated by the Irish Roman Catholic 
O’Connell. 

The seat for which O’Connell had been elected 
was declared vacant by Parliament on the ground 
that there had been no election. But the undaunted 
agitator stood for election a second time in contra- 


214 


HISTORY OF THE DEVELOPMENT OF 


vention of the statute, and a second time he was 
elected by a greatly increased vote of his fellow- 
citizens. Again in still louder tones he thundered 
at the gates of Parliament for admission, and again 
he was refused. But the result was that an un¬ 
willing Cabinet and a reluctant Parliament found 
themselves compelled by an aroused public senti¬ 
ment to enact the Catholic Emancipation Act (a.d. 
1829) for the removal of the civil and religious dis¬ 
qualifications of the Roman Catholics of Great 
Britain and Ireland, the legitimate sequel of the 
Act of the previous year for the political enfran¬ 
chisement of the Protestant Dissenters of the United 
Kingdom. Again, for the third time, O’Connell 
stood for election to Parliament, and he was re¬ 
turned by an overwhelming vote of the electors. 
The struggle was at an end, the disqualification had 
now been removed, and the triumphant Irish Agi¬ 
tator entered the House of Commons to begin there 
a new course of agitation, as well as to continue in 
Ireland that which he had already commenced for 
the repeal of the Union of that country with Eng¬ 
land. 

An enlightened public opinion was gaining ground 
in England, and one of the earliest results of the 
great Irishman’s continued agitation was to open 
the eyes of liberal-minded Englishmen to the rot¬ 
tenness of their existing system of Parliamentary 
Government. Under the Stuart Kings, and with 
their consent, England had secured regular Parlia¬ 
ments, bodies that were called to legislate, as well 
as to vote the supplies. Before this time no Par¬ 
liament, except that of Simon de Montfort, in 1265, 


CONSTITUTIONAL AND CIVIL LIBERTY. 215 

had ever been called in England for the purpose of 
legislation. For that the Stuarts consented to the 
innovation, we should give them the credit which 
is due to them. It was the feeble beginning of 
English Civil Liberty. But the Revolution of 1688, 
instead of enlarging the rights of the people, as is 
commonly supposed, greatly, although perhaps cov¬ 
ertly, abridged them by placing the Parliaments 
wholly under the domination of an oligarchy. This 
was done by means of the system of rotten boroughs, 
a name which seems to have been first applied by 
O’Connell to the electorate which selected the mem¬ 
bers of the House of Commons* 

The English electoral districts were then, and to 
a certain extent yet remain, wholly arbitrary. They 
were not based upon any ratio of population, or 
upon any other rational basis whatever. Possibly, 
for the purpose of taxation, for which only such dis¬ 
tricts in the beginning seem to have been recog¬ 
nized, there may have been some reasonable basis 
for the assignment of representation in the House 
of Commons. But, if any such reason ever existed, 
it had long ceased to have any force. London, of 
course, and the other large cities of the Country, 
were entitled to some representation, but even their 
membership in the House of Commons was entirely 
arbitrary. The great majority of the electoral dis¬ 
tricts were boroughs or hamlets that had ceased to 
have any population, or any greater population than 
a few tenants or retainers of the powerful nobles 
within whose domains they were situated, and who 
controlled absolutely the selection of their represen¬ 
tatives in the House of Commons. The English 


216 


HISTORY OF THE DEVELOPMENT OF 


Aristocracy not only had one branch of the Parlia¬ 
ment, the House of Lords, exclusively to them¬ 
selves—for in this connection we can take no note 
of their associates and subservient tools, the bishops 
of the English Church who sat with them, and who, 
as is usual in such cases, were worse than their 
masters in political profligacy—but they likewise 
completely owned the House of Commons by their 
ownership of the “ rotten boroughs,” for which 
they directed the sheriffs to return their creatures. 

A more monstrous fraud upon representative gov¬ 
ernment and Civil Liberty was never devised than 
the English House of Commons from 1688 to 1832. 

So far as there was any genuine Parliament in Eng¬ 
land during that period, it was to be found solely 
and exclusively in the House of Lords. There 
were occasionally able men in the House of Com¬ 
mons, especially during the latter part of the pe¬ 
riod, but no intelligent man, familiar with the sub¬ 
ject, can assert truthfully that the House of Commons 
of the Hanoverian period was a representative body 
of the English people, freely chosen by the English 
people to legislate for them and to conduct their po¬ 
litical affairs as their agents. 

But consequent upon the Napoleonic Wars intel- ' 
ligence had grown. A public opinion had been de¬ 
veloped. The spirit of America had had time to 
react upon England. It had become apparent that 
all French theory was not wrong. Many English¬ 
men had come to the belief that their bitter antas’o- 

o 

nism to Napoleon had been a mistake. O’Connell’s 
agitation, in principle, affected the just rights of 
Englishmen as well as those of Irishmen. Eenewed 


CONSTITUTIONAL AND CIVIL LIBERTY. 217 

movements abroad for an increased civil liberty, to 
which we will have occasion further on to advert, 
met with a responsive sympathy in England. Every¬ 
thing conspired to awaken a more true and just 
spirit in that country. At last, in a.d. 1832, after a 
sharp and sufficiently bitter contest, there was en¬ 
acted into law by the English Parliament a measure 
known as the Reform Bill, by which that body ac¬ 
complished the exceedingly rare and difficult work 
of self-reformation and the regeneration of Eng¬ 
land. That enactment provided for the abolition of 
the ‘‘ rotten boroughs,” and for the selection of Par¬ 
liaments reasonably representative of the English 
people, although various subsequent enlargements 
of the suffrage have been required in order to make 
the English House of Commons what it now'is, a 
really popular body which has practically eliminated 
the House of Lords from the control of English pol¬ 
itics. By the Reform Bill the substance of Civil 
Liberty" has been secured, when before that there 
was only a phantasm masquerading in the guise of 
liberty. It did for England what our Declaration 
of Independence and our Federal Constitution did 
for America. 

We have had occasion repeatedly to repudiate the 
insolent pretensions of English writers to the pos¬ 
session by their country of free institutions and of 
Civil Liberty from time immemorial. That time 
dates from a.d. 1832. That there were some ele¬ 
ments of freedom before that, no one will deny, but 
the passage of the Reform Bill was undouhtedly the 
true era of English Civil Liberty. England has 
passed through many varied phases in her career. 


218 


HISTORY OF THE DEVELOPMENT OF 


She deserves all the censure and a very large part 
of the eulogy that has been passed upon her. She 
has been a pirate among the nations, profiting alike 
by petty stealing and highway robbery—alternately 
a bully and a hypocrite, arrogant to the weak and 
cringing to the powerful; bearing a Bible in one 
band and smuggling opium with the other; cor¬ 
rupting the savage with fire-water and bribing the 
barbarian with presents to lead a nobler life. She 
has civilized and colonized where other nations 
have failed, but the weaker races she has extermi¬ 
nated before her. Her administration of her vast 
empire has generally been for profit; but her rule, 
both at home and abroad, since 1832, has generally 
been just, with some notable exceptions, and her 
influence has generally been on the side of humanity 
and Civil Liberty. What Pope Gregory is reported 
to have said of the possibilities of the English, when 
he saw some Anglo-Saxon youths in the market¬ 
place at Rome before he sent Augustine to convert 
the nation, an anecdote to which we have already 
referred, would seem to be as appropriate now as it 
was then—‘‘Aon Angli, sed Angeli, si modo Chris- 
tiani ”—“Hot Angles but Angels, if only Chris¬ 
tians.” 

There are many things in England yet that need 
elimination from the social system. The piratical 
spirit of the Aorman buccaneer and the land-grab¬ 
bing instinct of the Anglo-Horman feudalist still 
break out, whenever occasion arises, in the EiiHish 
adventurer; and the English government in the 
hands of tricksters, like Viscount Palmerston and 
Benjamin Disraeli, occasionally reverts to the lines 


CONSTITUTIONAL AND CIVIL LIBERTY. 219 


upon which Elizabeth’s government of bandits was 
constructed. But, in general, that government since 
the year 1832 has been conducted on a far higher 
plane of public morality than has ever before charac¬ 
terized it since the days of Edward the Confessor. 
During this period it has served in great measure 
as the model of all Europe for constitutional gov¬ 
ernment. 

Simultaneously with the inauguration of O’Con¬ 
nell’s great struggle for civil and religious liberty, 
popular discontent was growing in Europe for 
broken monarchical promises and the encroach¬ 
ments of the Holy Alliance upon what there was of 
constitutional government. Only fifteen years after 
Waterloo, in a.d. 1830, France a second time as¬ 
serted her undying opposition to arbitrary power, 
drove out the elder branch of the House of Bour¬ 
bon, and supplanted it with the House of Orleans 
and a more substantial system of Constitutionalism. 
Far within the heart of the realms dominated by 
the Holy Alliance and the principles of Absolutism, 
Poland, in the same year, rose in rebellion against 
the iron rule of the Russian Czar; and its gallant, 
though unsuccessful, stand against overwhelming 
numbers won for it the sympathy of the civilized 
world, and especially the sympathy of the party of 
liberalism in England. Responsive to the move¬ 
ment in France, the Belgians rose about the same 
time against the rule of the family of Orange and 
the ill-contrived union between them and Holland. 
Similar movements in the direction of liberalism 
took place in Spain and Portugal. And in all these 
movements, except that of Poland, which was too 


220 


HISTORY OF THE DEVELOPMENT OP 


remote from her sphere of operation, the influence 
of England was always quietly but eflectively cast 
in favor of liberalism and constitutional govern¬ 
ment. 

But the political conditions remained unsatisfac¬ 
tory in many of the European Countries. The 
House of Orleans failed to give satisfaction in 
France. The sovereigns of Germany, great and 
small, failed to inaugurate the Constitutional guar¬ 
antees, with the assurance of which they had delu¬ 
ded their people to resist the French aggressions in 
the earlier part of the century. Kussia, Austria, 
and Prussia, which constituted the Holy Alliance, 
remained thoroughly despotic and absolute mon¬ 
archies. Austria dominated Italy, and Russia 
dominated Austria. The gigantic Absolutism of 
the great Sclavonian Empire, in fact, dominated the 
whole continent of Europe; and were it not for the 
counteracting influence of England and the dread 
of releasing the fierce democracy of France from its 
self-imposed restraints, it would not have hesitated, 
in accordance with the resolutions of the Congress 
of Laibach, to use force in order to blot out consti¬ 
tutionalism from the Continent. In England itself 
the political situation was far from satisfactory. 
There were demands for more extensive and radical 
reforms than had been effected by the Reform Act 
of 1832, and for a written constitution on our 
American plan; and England’s treatment of Ire¬ 
land, although greatly more liberal than in the pre¬ 
ceding centuries, still continued to be a just ground 
for discontent of the Irish people. 

Suddenly and almost without warning, as if by 


CONSTITUTIONAL AND CIVIL LIBERTY. 221 


preconcerted movement, insurrections broke out in 
the year 1848, long to be remembered as the Year 
of Revolutions, in all the principal European Capi¬ 
tals,—in Paris, Berlin, Warsaw, Vienna, Buda- 
Pestli, Rome, and Naples; and likewise in Ireland 
—although the Irish insurrection seems to have had 
no direct connection with the others. The Repub¬ 
lic was again proclaimed in France, where it was 
maintained for three years ; and revolutionary gov¬ 
ernments, claiming to he of a republican character, 
were set up in the other capitals mentioned. The 
kings fled for a time, and some resigned; hut mon¬ 
archism soon reasserted itself. The King of ITussia 
recovered his capital. The armies of Russia were 
speedily set in motion to crush the uprising in 
Hungary and in Austria, which they accomplished 
after a gallant hut ineffectual resistance by the 
Hungarians. Rome surrendered to a French force 
sent against it. The insurrections, except that of 
France, finally failed, and their leaders fled to 
Switzerland, England, and America. But it is a 
mistake, probably, to say that they all failed. Some 
of them had been without suflicient cause or justifi¬ 
cation ; but for most of them there was a ground of 
genuine grievance. The monarchists of Europe, 
although triumphant for the time, realized the pre¬ 
cariousness of their tenure of power; and the long- 
promised and the long-withheld reforms were finally 
granted. Within a quarter of a century after the 
Year of Revolutions Constitutions were promul¬ 
gated and constitutional systems of government, 
more or less liberal in their character, were estab¬ 
lished in all the nations of Europe, except Russia 


222 


HISTORY OF THE DEVELOPMENT OF 


and Turkey, both of which are still ruled upon the 
Oriental autocratic principle, and one at least of 
which, it may he confidently asserted, is utterly in¬ 
capable of any other kind of rule, as long as it is 
permitted by its existence to disgrace the civiliza¬ 
tion of Europe. 

With the exception of the two nations specified, 
constitutional systems of government, based upon 
written constitutions in accordance with our Ameri¬ 
can idea, but otherwise in general operating in ac¬ 
cordance with the English Parliamentary theory, 
have now been in force in all the nations of Europe 
for upwards of a quarter of a century, in some of 
the countries for a much longer time; and notwith¬ 
standing many and serious drawbacks in their 
operation, they have, on the whole, given cause for 
satisfaction to the friends of Civil Liberty, not so 
much, perhaps, for what they have actually accom¬ 
plished as for the promise which they give of bet¬ 
ter results in the future. At all events. Feudalism, 
with all its infamies, is now dead; and Absolutism 
has become a synonym for barbarism. Civil Lib¬ 
erty has become the rule of the civilized world; 
and arbitrary power is only the exception. The 
voice of the people may now be heard everywhere; 
and if it is not always heard to its fullest extent, 
and if the systems that have been set up are not 
always truly representative of the people, and if the 
partisans of privilege and prerogative are still en¬ 
gaged in battling against human right, it is at least 
certain that the revolution now will never ^o back- 
wards, and that all the nations have the basis on 
which to move forward to the full realization of the 


CONSTITUTIONAL AND CIVIL LIBERTY. 


223 


original scheme of Divine Providence for the gov¬ 
ernment of the human race. 

But have the results fully justitied the sanguine 
expectations of the friends of humanity ? Has Free¬ 
dom’s battle tinally lieen won ? The long contest 
has left many a scar on the body politic; and it 
would be very strange if, after fifteen hundred 
years of feudal harharism and monarchy, the en¬ 
franchised peoples should always he able at once 
to use their newly-recovered freedom with the most 
consummate wisdom. Moreover, while the cause 
of liberty has triumphed, it is only in the recogni¬ 
tion of the principle : there is much yet to he elimi¬ 
nated from the social and political system of the 
antecedent abuses. The monarchical and aristocratic 
elements in Europe have forced the democracy to a 
temporary and unnatural compromise. The Eng¬ 
lish theory of a sovereign who reigns hut does not 
rule is in principle a most indefensible absurdity, 
which, in the nature of things, cannot be perpetu¬ 
ated, however good an expedient it may prove 
wherewith to bridge an intervening chasm. We are 
disposed to think that only by the adoption sub¬ 
stantially of our American system in its entirety 
can the long contest ultimately and satisfactorily be 
settled, and that the logical and inevitable tendency 
of existing conditions is towards the realization of 
that result. 

A word of explanation will be proper in regard 
to the salient features of the constitutional systems 
of government now in force in the principal Euro¬ 
pean nations. And from what we have to say in 
this regard we must except not only Russia and 


224 


HISTORY OF THE DEVELOPMENT OF 


Turkey, which, as we have stated, yet remain Ori¬ 
ental despotisms, hut likewise republican Switzer¬ 
land, with its thoroughly democratic institutions of 
comparatively ancient date, and France, now also 
republican and with political institutions substan¬ 
tially not unlike our own; as also such petty repub¬ 
lican States as Andorra and San Marino. Our pres¬ 
ent consideration is mainly of such nations of 
Europe, outsjde of the United Kingdom of Great 
Britain and Ireland, as have sought to combine 
monarchy of the hereditary character with consti¬ 
tutionalism and popular government. These com¬ 
prise Germany, Austria-Hungary, Italy, Spain, 
Portugal, Belgium, Holland, Sweden and Norway, 
Denmark, Boumania, Bulgaria, Servia and Greece. 
In all these countries, while the American idea of 
written constitutions, defining and limiting the func¬ 
tions of government, has been adopted,—and it could 
not well have been otherwise,—they have all been 
compelled to adopt, also, the English Parliamentary 
system of government by a Cabinet responsible to the 
legislature. That legislature is usually composed of a 
House of Commons or a House of Deputies, similar 
to the English House of Commons or our House of 
Kepresentatives, and elected by the people, and of 
another more limited and select body, being in 
some measure a compromise between our American 
Senate and the English House of Lords. Nowhere, 
however, is there the hereditary feature appertain¬ 
ing to the last-named body. Life-tenure is the ex¬ 
treme limit ill any case; and there is no monopoly 
of its membership by the aristocratic or privileged 
classes. Everywhere the sovereign has a veto upon 


CONSTITUTIONAL AND CIVIL LIBERTY. 225 


legislation, and is therefore a constituent element of 
the legislative hody ; and this veto is, as in the Eng¬ 
lish system, theoretically unqualified and absolute, 
not qualified, as with us, and subject to he overrid¬ 
den by some two-thirds or three-fourths majority in 
opposition to it. But it is considered, also, that the 
English practice, as well as the English theory, ob¬ 
tains,—that this reserved veto power is to be exer¬ 
cised only under the risk of revolution, and of trea¬ 
son on the part of the members of the Cabinet who 
sanction its exercise. The sovereign is nominally 
the sole and exclusive head of the executive branch 
of the government; but this is only in theory. The 
executive power, in fact, is reposed in the Cabinet, 
which is responsible to the legislature and holds its 
position only so long as it receives the legislative 
approval, and of which the members are required 
to be members of one or other or both of the branches 
of the legislative body. This is, in substance, the 
English Parliamentary system ; and it is the system 
now in force, with more or less variation, in all the 
nations of Europe which have been mentioned. In 
Germany, it may be remarked, there is a greater 
approximation to our own system, although for rea¬ 
sons different from those which dictated our arrange¬ 
ment. There the monarch retains more of the 
ancient absolutism and independence, and has more 
control over his cabinet, than have the monarchs in 
other nations. But it is believed that this remnant 
of the old feudal power must soon be relegated to 
the desuetude which characterizes the other attri¬ 
butes of former monarchy. In none of the Euro¬ 
pean nations yet has the triple division of power 


226 


HISTORY OF THE DEVELOPMENT OF 


been established between the legislative, executive, 
and judicial branches of government, which we re¬ 
gard as one of the three great fundamental features of 
our American constitutional system, and which seems 
to us one of the best safeguards for the perpetuation 
of Civil Liberty. This feature, of course, is impos- 
ble in Europe, and even in England, as long as the 
hereditary idea of the monarchy is permitted to 
exist, and to be given effect. 

Thus far we have referred only to the develop¬ 
ment of constitutional and civil liberty in Europe 
and America. We deem it needless to mention the 
great colonies of England in South Africa and 
Australia, in both of which, under the suzerainty of 
England—for the connection does not amount to 
much beyond that—there is a remarkable develop¬ 
ment of civil and political institutions on English 
lines, or rather on lines partly English and partly 
analogous to our American system. In the same cate¬ 
gory is our near neighbor, Canada. But there is one 
other nation that should be mentioned in this con¬ 
nection for its extraordinary development of con¬ 
stitutional government—the most unprecedented, 
probably, in all the annals of history: for it is the 
transformation by itself and by its own unaided 
efforts, Avithout pressure upon it by the people, of an 
old feudal monarchy, one of the oldest in existence, 
into modern Constitutionalism, not uinvorthy to be 
ranked with that of Europe and America; and this, 
too, by a non-Aryan race, the ancient Empire of 
Japan. 

Overthrowing in an incredibly short time the an¬ 
cient feudalism which had kept it under military 


CONSTITUTIONAL AND CIVIL LIBERTY. 


227 


thraldom for upwards of seven centuries, and over¬ 
coming in a decade difficulties which Europe had 
required several centuries to surmount, the Island 
Empire of the East has hurst upon the astonished 
gaze of the civilized world with the brilliance of 
the morning star after a long night of darkness, 
and has startled the nations with its extraordinary 
capacity for self-government and the development 
of constitutional and civil liberty, hitherto supposed 
to be the exclusive patrimony of the Aryan Race. 
A hereditary monarch, claiming a long line of an¬ 
cestry, extending back to the days when Rome was 
not, before Cyrus the Persian thundered at the 
gates of Babylon, and when the Pharaohs were 
still powerful on the ISTile, taking counsel only with 
his own people and regarding only their welfare, 
voluntarily and of his own accord relinquished the 
heritage of absolute sovereignty that had come down 
to him through upwards of twenty-five centuries of 
imperial rule, gave to his people a written Constitu¬ 
tion based upon the models presented in Europe and 
America, and established a Parliament, truly repre¬ 
sentative of the people, with a responsible Cabinet, 
as in the Constitutional nations of Europe. And that 
system is now in successful operation, and Japan 
has taken its place among the great powers of the 
world. 

When we consider that this island Empire of the 
East had for three centuries industriously secluded 
itself from the family of nations by the rigid exclu¬ 
sion of all foreigners from its territory; that only 
in 1854 was it brought into communication with 
our Western World by the appearance in its waters 


228 


HISTORY OF THE DEVELOPMENT OF 


of an American fleet under the command of Com¬ 
modore Perry; that only in 1868 its rnler, the 
Mikado, resumed the actual sovereignty which had 
long been usurped by military chiefs and powerful 
clans; that within two years thereafter he had, with 
remarkably small destruction of life or shedding of 
blood, extirpated the peculiar feudal system that 
had dominated the country for more than seven 
hundred years; that in 1881 the constitutional sys¬ 
tem was proclaimed, and in the next year the first 
Parliament met; and that the country has taken as 
naturally to the new order of things as though it 
had come down to it from immemorial ages, it must 
be admitted that Japan supplies one of the most re¬ 
markable and one of the most interesting chapters 
in the history of Civil Liberty. We have known 
the Mongolian Races of Central and Eastern Asia, 
under leaders such as Attila, Jenghis Ivhan and 
Timur, to have more than once threatened the 
Aryan Civilization of the West with subjugation; 
but on this occasion one of those races enters into 
earnest competition with the Aryans for the devel¬ 
opment of Constitutional Liberty. The guns of 
Concord indeed have reverberated around the 
world. 


CONSTITUTIONAL AND CIVIL LIBERTY. 229 


LECTURE VIIL 

RELIGIOUS LIBERTY AND FREEDOM OF CONSCIENCE. 

There is one branch of our subject that remains 
to be considered, and it may seem strange in our 
day that it should require separate or special con¬ 
sideration. Civil Liberty without Religious Liberty 
and Freedom of Conscience is to us unintelligible; 
for with us the freedom of the conscience is the pri¬ 
mary essential element of all Civil Liberty. And 
yet it would not seem to have always been so. Men 
who have claimed to be the special champions ot 
Civil Liberty, and whose claim in that regard we 
may well admit to have been honest, have not hesi¬ 
tated to persecute bitterly and barbarously all who 
differed with them in matters of Religion. For 
illustration, we have to go no farther than the Puri¬ 
tan settlers of hTew England, as well as the Puritans 
of the English Commonwealth, which for a time 
displaced in England the monarchy of the Stuarts. 

To the question of Religious Liberty there is 
both a theoretical and a practical side. Truth and 
Error, of course, are unalterably and forever antag¬ 
onistic to each other. As we remarked in our 
opening lecture, Truth is ever one and immutable, 
Error manifold and hydra-headed. Theoretically, 
Truth is necessarily intolerant of Error; and this 
we say not only with reference to Religious Truth, 
but with reference to the truths of Science also, and 


230 


HISTORY OF THE DEVELOPMENT OF 


of all branches of human knowledge. Errors may 
coexist with each other, but Truth and Error may 
not coexist. These are axiomatic statements which 
we presume no man will contest. It would seem 
to follow from them, as a logical deduction, that, 
while Truth might justifiably be intolerant. Error 
should never be otherwise than tolerant. Yet we 
usually find the concrete fact to be to the contrary. 
The truthful and the virtuous are not always toler¬ 
ant, but it is the invariable characteristic of the 
vicious to be intolerant. Such is unfortunately the 
experience of all history, and the reason of it may 
not be difficult to be discovered, although to enter 
upon that question here would take us too far away 
from our subject. It is sufficient that the fact is as 
we have stated. 

It might be supposed that the accommodating 
Polytheism of Greece, in the time of the Selencidae, 
could readily have tolerated the worship of Jehovah 
as practiced by the little tribe of the Jews on the 
hills of Palestine. It had tolerated and assimilated 
all the abominations of the Syrian Goddess and of 
the savage Moloch. And yet one of the most 
pathetic and at the same time most heroic episodes 
in the history of the people of Israel is their fierce 
and frantic persecution by Antiochus Epiphanes, 
King of Syria, on account of their religion. The 
polytheism of Rome under the Csesars was capacious 
enough to accept as additions to it the infamous 
mysteries of Samothrace and Egypt, but it was un¬ 
able to tolerate the simple and soul-elevating creed 
of Christianity and the purity of life of the early 
Christians. We are compelled to recognize that it 


CONSTITUTIONAL AND CIVIL LIBEKTY. 231 


was only Error’s undying hatred and intolerance of 
the Truth that instigated the ten savage persecutions 
of Christianity carried on by the Roman Emperors 
for the greater part of three centuries. 

When Christianity triumphed in the triumph of 
Constantine the Great, it did not seek to retort upon 
its persecutors for the wrongs which it had suffered 
from them. Its triumph was a proclamation of re¬ 
ligious liberty for all persons within the Roman 
dominions, and there was practical freedom of con¬ 
science for all the Roman world. Unfortunately it 
was found impossible always to maintain this con¬ 
dition of universal tolerance; and when the heresies 
of Anns and Uestorius, and subsequently that of 
Macedonius, and the Iconoclastic heresy of the 
Isaurian Emperors of the East arose, they were all 
prolific of the spirit of persecutioii; and it is per¬ 
haps no wonder that the adherents of orthodoxy 
frequently retorted upon the abettors of schism and 
heresy for their intolerance. 

In the contest, to which we have adverted, of the 
Roman Civilization against the Northern Barbarians 
and their descendants to recover its lost ground, the 
Christian Church from the beginning took a most 
prominent part. Indeed, the contest for a long 
time was waged mainly and almost exclusively be¬ 
tween the Church and the Barbarians; for all that 
was left of the Roman Civilization and of Civil 
Liberty became identified with the cause of the 
Church, and the contest of the Roman Civilization 
against Feudalism was equally the contest of the 
Church against Odinism and the fierce intolerance 
of the Northern superstition. The conquering Bar- 


232 


HISTORY OF THE DEVELOPMENT OF 


barians were all either pagans or professors of the 
bastard Christianity of Arianism which had been 
industriously disseminated among them. There 
were no orthodox Christians among them ; and such 
Christianity as they had was deeply tainted with 
the savage bigotry of the pagan creed which they 
never wholly abandoned. It was easy, therefore, 
for them to combine the practice of persecution, 
natural to the fanatical sectarian, with the practice 
of murder and pillage natural to the N^orthern Bar¬ 
barian. And it was with these practices that the 
Christian Church was called upon to contend for 
the first three or four centuries after the conquest 
of the Roman Empire by the Barbarians. Re¬ 
ligious Liberty was as much involved in the contest 
as Civil Liberty and the Roman Civilization. 

Even after the Arian heresy had disappeared, as 
it gradually did, and all Central and Western Eu¬ 
rope had given its adhesion to orthodox Chris¬ 
tianity, the contest for Religious Liberty did not 
cease. It went on in other forms. The history of 
the Middle Ages is full of constant controvers}^ and 
conflict between the Church and the State. At one 
time it was a question of quarrel between the Popes 
and the Emperors of Germany over the subject of 
investiture—that is, as to Avhich of the two should 
nominate and appoint the Bishops to their respec¬ 
tive dioceses. At another time it was a fierce bat¬ 
tle, made more fierce by interdict and excommuni- 
tion, between the Popes and the Kings of France 
over the sanctity and inviolability of the marriage 
relation, which the successors of Clovis and Charle¬ 
magne and Hugh Capet had the habit of frequently 


CONSTITUTIONAL AND CIVIL LIBERTY. 233 

disregarding. Again, on other occasions, it was a 
contest of the Popes with the Kings of England in 
regard to the characteristic Anglo-Korman tendency 
of these latter to depredate upon the Churches and 
the monasteries, and to plunder them of their reve¬ 
nues. The contest was multifarious, and in one 
shape or other almost continuous. We do not 
hesitate to assert that the cause of the Church was 
the cause both of Civil and of Religious Liberty. 

This statement is undoubtedly in contravention 
of the assertions of the great majority of English 
and American writers—at least of those of past 
ages—for those of the present would seem to be 
either more just or more intelligent. But the 
American writers in this matter have been ^ener- 
ally the blind imitators and followers of their Eng¬ 
lish predecessors, whose hatred for the Roman Civili¬ 
zation, for the Latin Church as the great conservator 
of that Civilization, and for the Papacy as the consis¬ 
tent opponent of the system of Feudalism of which 
they are the slavish sycophants and defenders, has wil¬ 
fully blinded them to the truth, and involved them 
in a gigantic conspiracy to represent the infamous 
Feudal System as the parent of Civil Liberty. Their 
falsehood and their malice are well illustrated by a 
writer, whose eminent qualities in other respects 
have entitled him to a high place in law and litera¬ 
ture and the esteem of his countrymen. Sir William 
Blackstone, the well-known author of the “ Com¬ 
mentaries on the Common Law of England.” 
Blackstone, speaking of the Feudal System, says 
that it was “ a plan of simplicity and liberty.” The 
writer Avho could calmly and deliberately give ex- 


234 


HISTORY OF THE DEVELOPMENT OF 


pression to the opinion that the Feudal System was 

a plan of liberty ” might well he expected to give 
expression to any falsehood, however atrocious, that 
tended to place the Roman Church of those days 
in an injurious light, and his “ Commentaries ” are 
full of such falsehoods. And if a writer, whose 
work was of such a character as to inspire the im¬ 
partiality of a calm and judicial temperament, could 
so far permit himself to he led astray by the bigotry 
and malice of the feudal classes, to whom he was 
called upon to cater, it is no wonder that other less 
informed and less impartial writers should, either 
through reckless negligence or wilful perversity, 
misrepresent the attitude of the Latin Church to 
the feudal States and the feudal classes of the 
Middle Ages. 

It is very true that Church and State were almost 
constantly at war with each other during the Mid¬ 
dle Ages—that is, in a war of principle. But it is 
utterly false that this was an unholy contest on the 
part of the Church to acquire supremacy over the 
State. That there was often unhallowed ambition 
among churchmen, as well as among the feudal 
classes, it would he foolish to deny. That Popes 
and Bishops often went beyond the legitimate 
sphere of their authority is only too true. That 
there were bad men, Brakespearres and Borgias, on 
the Papal throne, as well as on the thrones of Feu¬ 
dalism, and that often Bishops of the Christian 
Church were as much a disgrace, by their conduct, 
to the religion which they professed as were the 
robber barons of Feudalism or England’s Plan- 
tagenet Kings to the manhood which they outraged. 


CONSTITUTIONAL AND CIVIL LIBERTY. 235 


is no more than to say that Popes and Bishops were 
men with human frailties. But we are treating: of 
the clash of institutions and of policies, not of either 
the individual vices or the individual virtues of the 
men avIio were engaged in the contest, although, of 
course, it would be most strange if, on the whole, 
the institutions of civilization were not illustrated 
by the virtues of those who sought to maintain 
them against the inroads of barbarism, and the evil 
tendencies of Feudalism by the evil actions of the 
monarchs and barons and their organized bands of 
ruffian retainers. The incidental manifestation of 
vice and excess among churchmen does not militate 
against the fact now perfectly patent to any but the 
most blinded bigot that only by the incessant and 
systematic opposition of the Christian Church of 
the Middle Ages to the crimes of Feudalism, and 
even to the very existence of that institution, was 
the spirit of civilization and civil liberty preserved 
among the nations. There was constant war in 
those days, and it was ever and invariably the war 
of light against darkness, of freedom against des¬ 
potism, of the Roman Civilization against Teutonic 
Odinism. 

Sometimes it happened that members of the feu¬ 
dal classes were found in the ranks of the Church, 
and even occupying its high places. Sometimes 
such men were earnest and devoted Christians. 
Just as frequently, perhaps more frequently, they 
were ambitious seekers for power and wealth, and 
turbulent disturbers of the ecclesiastical polity. But, 
in general, the ranks of the Church, from the occu¬ 
pant of the papal throne to the monk in his humble 


236 


HISTORY OF THE DEVELOPMENT OF 


cloister, were recruited from the ranks of the peo¬ 
ple, the descendants of the old Romanized popula¬ 
tions, and not from the feudal classes, and naturally 
their sympathies were with the people from whom 
they had sprung. Hence the instinct of race, if 
nothing else, would have induced the Church and 
churchmen to espouse the popular side in the long 
contest for Civil Liberty. 

The feudal nobles and the feudal monarchs were, 
as a rule, ignorant and brutal. Their occupation 
continued to he what tliat of their barbarian ances¬ 
tors had been in Germany and Scandinavia, that of 
war and the chase. But art, literature, science, all 
the humanities and the amenities of life, all the ele¬ 
ments that go to make up Civilization, they knew 
nothing of and totally despised. What Earl Doug¬ 
las is made by Sir Walter Scott to say, in his poem 
of “ Marmion,” is characteristic of all his race, and 
of all the ages of feudalism: 

“Thanks to Saint Bothan, son of mine, 

Save Gawain, ne’er conld pen a line ; 

So swore I, and I swear it still, 

Let my boy bishop fret his fill.” 

They were chivalrous, it is true, at times. Chivalry 
was their one virtue, if virtue it was. But such 
chivalry was the veneering of barbarism, forced 
upon them, in a measure, by Christianity, and 
which, like their Christianity itself, they readily 
threw aside, as occasion dictated, to give way to 
their hereditary barbarian propensities. 

All the education of the time was confined al¬ 
most exclusively to the church, to the cities, and to 
what we would call the people, as distinguished 


CONSTITUTIONAL AND CIVIL LIBERTY. 237 

from the feudul classes. The latter had simply the 
organized power of the sword. It is not too sweep¬ 
ing a statement to make that, during the thousand 
years which intervened between the irruption of the 
Barbarians and the Discovery of America, the feu¬ 
dal classes gave no scholar to literature, no votary 
to art, no devotee to science, no adept to philosophy, 
not even a statesman to political economy. If there 
are any exceptions to this statement, they are of so 
unimportant a character as to he undeserving of 
notice. Civilization owes nothing whatever to the 
feudal classes, not even the architecture of their 
castles, nor the songs which were sung within their 
halls. The Troubadours and the Trouveres were of 
the people, and it required the scholars of Ireland, 
France and Italy to put into shape the rude sagas 
indigenous to Scandina,via. Moreover, they were 
unable even to administer their own rude laws and 
usages, so as to insure the stability of such social 
order as they possessed, without the aid of the 
Bishops of the Church. 

Is it any wonder, then, that the Christian Church, 
the organ of Religion and the arbiter and practi¬ 
cally sole possessor of all the education of the time, 
was the uncompromising enemy of Feudalism ? 
Religion and education are both necessarily hostile 
to the brute force of a merely military organization. 
The party of the Church in the contest was there¬ 
fore necessarily the party of Civil Liberty, Civiliza¬ 
tion, and the social order. The issue was very dis¬ 
tinctly defined in Italy when the Guelphs and 
Ghibellines distracted that country with their con¬ 
test. The party of human freedom and national 


238 


HISTORY OF THE DEVELOPMENT OF 


independence was always that with which the 
Church was attiliated : German Imperialism, Teu¬ 
tonic Feudalism, and national degradation were on 
the side of its opponent. The republican free cities 
of Italy grew up in the shadow of the Church, and 
with the assistance of its great influence. Curi¬ 
ously enough, the little Ilepublic of San Marino, 
amid the fastnesses of the Apennines, the oldest of 
existing Republics, owes its foundation, as well as 
its name, to an humble religious of the Latin 
Church. Andorra, in the Pyrenees, the next in 
seniority, has had for its chief executive officer, from 
time immemorial, the Christian Bishop of the neigh¬ 
boring city of Urgel. And history tells us how 
sincerely and earnestly Christian the sturdy Switzers 
were who enforced their freedom against their feu¬ 
dal rulers, and how the Christian Church has al¬ 
ways extended to them its warmest sympathy. With 
them the Church never had contest, as it had with 
the feudal powers of Europe. 

We have stated that the Barbarians, who over¬ 
threw the Roman Empire and on its ruins estab¬ 
lished their feudal systems, were generally content 
to leave the cities, especially the great cities, unmo¬ 
lested, after perhaps plundering them, and with, the 
exaction merely of some stated tribute. In these 
cities the Bishops had established themselves and 
the schools which they maintained, and usually there 
was a bishop for each city of considerable size. In 
fact, in England, the very word city, as distinguished 
from town or borough or other settlement, was de¬ 
fined to he a bishop’s see. The bishops always 
made common cause with their fellow-citizens 


CONSTITUTIONAL AND CIVIL LIBERTY. 


239 


agiiiiist the feudal nol)les. In the episcopal schools 
was retained whatever of science or literature had 
escaped the fury of the Barbarians. There the 
Roman institutions, the Roman Jurisprudence, and 
the Roman spirit of Civil Liberty were taught with 
the Christian Scriptures, and perpetuated. The 
guilds, wherein the denizens of the cities in those 
days banded themselves for self-protection against 
the exactions of the feudal rule, were always under 
the immediate sanction of ecclesiastical authority, 
and with the aid of that authority were enabled to 
maintain their liberty and immunity. 

Peculiar outgrowths of the Christian Church in 
the Middle Ages were the numerous Religious Or¬ 
ders that arose, and the numerous monasteries that 
were established by them, in which literature was 
cultivated, the ancient classics of Rome transcribed 
and studied, and the history of the Bible, with its 
lessons of individual civil liberty, so opposed to the 
degrading serfdom of the Feudal state, received 
elaborate consideration. Around these monasteries 
retainers came, and settlements grew up of those 
who sought protection from the lawlessness of the 
feudal barons, and the monastery invariably became 
the rival and the antagonist of the feudal castle in 
the defence of the people against feudal tyranny. 
The fact is patent upon every page of the history of 
th-e Middle Ages. Ignorance, malice and bigotry 
have been accustomed to sneer at the monks and 
monasteries, to ridicule them for their little learn¬ 
ing, and to jeer at them for their supposed indo¬ 
lence and simplicity of life. It may be sufficient to 
say, in answer to this, that only ignorance, malice 


240 


HISTORY OF THE DEVELOPMENT OF 


or bigotry will indulge in such charges at this day, 
when every impartial and well-informed student of 
history knows that to the monks and monasteries, 
and to the Church which they represented, we owe 
the preservation of all the ancient literature, art, 
science and civilization that have come down to us, 
and that if it had not been for these monks and the 
priesthood of the Christian Church, Europe might 
have been sunk in a dismal barbarism, from which, 
perhaps, it would have been impossible for it to 
have emerged. Abuse of the monks at the present 
day is an evidence of malignity that places those 
who indulge in it on a level with the savages with 
whom, in their own day, they had to contend. 
These monks made the desert blossom as the rose, 
and if they did not always reach the high ideal 
which their original founders designed for them, 
we have only to say, as we said before of the Popes 
and Bishops of the Church, that they were only 
human. We should never forget that it is to the 
Eeligious Orders of the Middle Ages that we owe 
the first distinct and positive suggestion of govern¬ 
ment by written constitutions, and, therefore, of the 
specific restriction of power in the interest of Civil 
Liberty. 

It may be remarked, in this connection, that it 
was to the efforts of the Church to educe some useful 
purpose out of the Feudal System that was due the 
establishment of the Military Eeligious Order of 
St. John, more commonly known as the Knights of 
Malta, the Knights Templars, the Order of the 
Knights of Calatrava in Spain, the Teutonic Knights 
of Saint Mary in Korth Oermany and Poland, and 


CONSTITUTIONAL AND CIVIL LIBERTY. 


241 


other similar organizations, wliicli for a long time 
presented a strong bulwark for Europe against the 
assaults of the Saracens, the worst enemies of Lib¬ 
erty and Civilization whom the world has ever 
known. 

But perhaps to the great Universities of Europe 
in the Middle Ages, Salerno, Bologna, Padua, Sala¬ 
manca, Paris, Oxford, more than to any other one 
one cause, at least during the second half of the 
period usually so designated, we owe the perpetu¬ 
ation of our Civilization and of the principles 
of Civil Liberty. All of these institutions were 
veritable republics in themselves, almost independ¬ 
ent of the feudal monarchies and of the feudal au¬ 
thorities around them. They made their own laws, 
had their own executive officers elected by them¬ 
selves, and their own tribunals for the adjudication 
of the controversies which arose within them; and 
they propagated the principles of civil liberty and 
human equality, not only by preaching and exam¬ 
ple, l)ut likewise and perhaps even with greater po¬ 
tency by breaking down the barriers between the 
nations which Feudalism had sought to erect, and 
by bringing together from all the nations to these 
shrines of education students who soon became 
bound to each other by the bonds of a common 
brotherhood. The influence of these Universities 
in counteracting the evil influences of the Feudal 
System was exceedingly great. But, as in the case 
of the monasteries, so also with reference to these 
great LTniversities of the Middle Ages, it was at 
one time the tashion with self-sufficient and arro¬ 
gant ignorance to decry the education which they 

16 


242 


HISTORY OF THE DEVELOPMENT OF 


gave, and especially the scholastic philosophy which 
they chiefly taught. No intelligent man will now 
venture upon any such impertinent criticism. 

Now to the Christian Church of the Middle Ages 
we owe the establishment of each and all of these 
institutions, without a single exception. They were 
all founded, endowed, and organized by churchmen, 
and under ecclesiastical influence. All of them re¬ 
ceived their charters from the Popes. If kings and 
nobles sometimes aided them with donations, as 
occasionally they did, it was only in a sporadic 
manner or for some special reason. It Avas rare, 
indeed, that the monarchs of the Age of Feudalism, 
and rarer still that any of the feudal nobles, Avere 
inspired with the liberal and generous spirit of aid¬ 
ing the Universities in their Avork of education and 
civilization. Their feelings rather Avere such as 
have been indicated in the lines already cited from 
Sir Walter Scott concerning Earl Douglas. It Avas 
from the Church, and practically from the Church 
alone, that the Universities derived their existence 
and their support. 

More by its general purpose, perhaps, and the 
general scope of its teaching, by its efforts to civilize 
the barbarian, to restrain feudal rapacity, and to hu¬ 
manize the social system, than by any one distinct¬ 
ive act or series of acts, did the Church of the Mid¬ 
dle Ages strive to promote the cause of Ci\dl Liberty. 
But distinctive acts are not wanting, if such be 
sought in the history of the time. We need not 
cite more than that Avhich is so prominent in Eng¬ 
lish history, and to AAdiich we have already more 
than once referred—the extortion of Magna Charta 


CONSTITUTIONAL AND CIVIL LIBERTY. 243 

from King John Plantageuet. That is generally 
and rather vaguely represented to have been the 
act ot the English people. But the people, as such, 
had no part whatever in the transaction, if we ex¬ 
cept such moral support, which seems not to have 
been very great, as the City of London gave to the 
movement. More correctly, the Great Charter has 
been stated to have been wrung from King John by 
the barons and clergy. But it appears plainly that 
some of the most powerful barons, and possibly even 
a majority of the feudal class, was on the side of the 
monarch in the controversy. The Earl of Pem¬ 
broke, the most powerful nobleman in England at 
the time, was in command of King John’s forces on 
the field of Runnymede. The recitals of the famous 
document itself, and the authentic chronicles of the 
time, show conclusively that the ecclesiastical au¬ 
thorities were the principal instruments in its pro¬ 
curement from the reluctant tyrant. Stephen Lang- 
ton, the Cardinal Archbishop of Canterbury, was 
confessedly the leader of the movement against 
King John, and the master-mind in the direction 
and management of it; and Magna Charta was be¬ 
yond all question mainly, if not exclusively, the 
production of his pen and the work of his hands. 
Kext to him in the movement was Pandolfo, the 
Papal Legate; and both were ably and powerfully 
assisted by the Bishops of Winchester, Bath, Lin¬ 
coln, Worcester, and others, and even by the Arch¬ 
bishop of Dublin, in Ireland, all of whose names 
appear in the document as those of the persons 
most instrumental in its promulgation. If, there¬ 
fore, Magna Charta is, as has frequently been 


244 


HISTORY OF THE DEVELOPMENT OF 


claimed, the foundation of English liberty, that 
foundation is justly due to the Roman Church and 
to its ecclesiastical authorities in England. 

R^o person who is even moderately familiar with 
the history of the Middle Ages, and who does not 
receive his opinions at second hand from partisan 
English Avriters, will now question for a moment 
that the whole course of the Latin Church in all its 
contests with the feudal monarchs of Europe w^as 
consciously and purposely in the interest of Civil 
Liberty, and in defence of popular right, individual 
freedom, and the sacred cause of humanity. It Avill 
be quite apparent that it could not well have been 
otherwise, when we remember that the Christian 
Church and the Christian Religion are based upon 
the theory of the freedom of the human will and in¬ 
dividual responsibility, and that upon the same 
principle of individualism true civil liberty is 
founded. It is the theory of our democracy that 
the state was made for the individual, not the indi¬ 
vidual for the state; and that State socialism, 
whether in the guise of an irresponsible or uncon¬ 
trolled majority, or in that of a military despotism 
such as the Feudal System everywhere w^as, is 
equally inimical to human freedom. If, in the 
course of the contest with Feudalism, the Popes and 
the ecclesiastical authorities of the Latin Church 
seem to have occasionlly exceeded the limits of mod¬ 
eration, it should be remembered that only by in¬ 
terdict and excommunication and the severest course 
of procedure could ruffians like John Plantagenet, 
Henry lY. of Germany, Frederick Barharossa, the 
Louises, the Lothaires, and the Berengers of that 


CONSTITUTIONAL AND CIVIL LIBERTY. 245 


evil time, have been restrained from their outrages 
upon civilization. It is but natural that there should 
have been occasional excesses; hut in teaching to 
the oppressed nations the lesson which they sadly 
needed, that there was a limit to monarchical tyr¬ 
anny, aristocratic insolence, and feudal arrogance, 
the departures from forbearance were rare indeed 
on the part of those who upheld the cause of civili¬ 
zation. 

The claim that the purpose of the Church in its 
frequent contests with the temporal power during 
the Middle Ages was intended only to establish its 
own ecclesiastical despotism is, in the light of what 
has been stated, an absurdity. That purpose, if it 
existed, might well have been subserved by an alli¬ 
ance with the temporal power and its absorption 
into a theocracy, as in the case of Mohammedanism 
in the East. Assuredly, persistent antagonism to the 
excesses of the temporal power was the worst way 
possible whereby to secure such a result, l^or is 
there any evidence whatever that the Latin Church 
of the Middle Ages sought in any manner to exercise 
a despotic influence over the consciences of the peo¬ 
ple. After the disappearance of the Arian heresy, 
the European nations with great unanimity had 
adopted the doctrines of Orthodox Christianity as 
taught by the Latin Church, and that unanimity 
remained substantially unbroken until the Lutheran 
Reformation. There was, therefore, no occasion for 
the denial of the freedom of conscience; and the 
sporadic cases of John Wyckliflfe, John Huss, and 
Arnold of Brescia, and others who might be men¬ 
tioned, can scarcely he regarded as exceptions to 


246 


HISTORY OF THE DEVELOPMENT OF 


the rule, is the so-called persecution of the 

Albigenses and the Yaudois in Savoy and Provence 
to be regarded as an exception. If one-half of the 
atrocious crimes charged against these sectarians 
be justly charged against them—and the charges 
were preferred by the civil authorities, not by the 
Church, and are certainly sustained by abundant 
testimony—their extermination from the face of the 
earth, rather than their persecution, would have 
been justifiable. The story of Sodom and Gomor¬ 
rah had its counterpart in the history of the Albi¬ 
genses. We have been compelled in our own day 
and in our own republic to decree the suppression 
of the infamous polygamy of Mormonism by the 
stern hand of the law, notwithstanding that this 
practice was distinctly sanctioned and established 
as the corner-stone of that very peculiar religious 
system. Religious liberty and freedom of conscience 
do not consist in the toleration of practices antago¬ 
nistic to the elementary principles of our civiliza¬ 
tion ; and we might as well sanction the horrid cru¬ 
elties of Moloch as the practices charged, whether 
justly or unjustly, against the Albigenses. The 
Church undoubtedly denounced those practices, as 
it was incumbent on it to do, just as all the Chris¬ 
tian Churches of our day have denounced the in¬ 
iquities of Mormonism ; hut in the case of the Albi¬ 
genses, as in the case of the Mormons, it was the 
civil authorities that undertook the detection and 
prosecution of the charges. 

The Lutheran Reformation made an era in the 
history of the human race. It inaugurated a move¬ 
ment which, from small beginnings, grew to such 


CONSTITUTIONAL AND CIVIL LIBERTY. 247 


dimensions as to involve all Europe in war and tur¬ 
moil ; to array nation against nation, province 
against province, city against city, brother against 
brother; to cause some of the fairest provinces of 
Europe to be devastated with tire and sword; and to 
arouse a spirit of persecution almost fiendish in its 
malignity and without parallel in history, except in 
so far as the persecutions of Christianity by the 
Roman Emperors be regarded as furnishing a 
parallel. Without stopping to answer the question 
whether such results be not sufficient in themselves 
to condemn the movement, or that other question 
whether there was not corruption in the Church 
that justified the most vigorous movement for its 
eradication, we must confine ourselves here to the 
inquiry how far this movement conduced to the 
establishment of Civil and Religious Liberty. In¬ 
asmuch as the bitter antagonisms aroused by the 
Reformation are yet in active operation, and the 
prejudices of a blind and unreasoning sectarianism 
are powerful to distort the processes of the human 
intellect and to warp the human judgment, it is not 
easy to enter upon a consideration of this subject 
without encountering such prejudices. But cer¬ 
tainly there are some facts in the history of the 
movement upon which we can agree, and from 
which the conclusions to be drawn will commend 
themselves to the mind that is disposed to be im¬ 
partial, notwithstanding the strong partisan bias of 
sectarianism that may stand in the way. 

That the so-called Reformers, Luther, Calvin, 
and their associates—whom, of course, it is a patent 
mistake to call Reformers, since they ended by 


248 


HISTORY OF THE DEVELOPMENT OF 


wholly abandoning the Church which they claimed 
in the first instance merely the purpose to reform— 
did not propose to establish Liberty, either civil or 
religious, except for themselves to conduct their 
movement without molestation from those against 
whom the movement was directed, is very clear 
from the whole tenor of their history. If we give 
them full faith and credit for sincerity of iutention 
and honesty of purpose, we must assume that their 
sole and only purpose was to establish what they 
claimed to regard as the evangelical truth in the 
place of what they designated as the errors, the 
superstitions, and the corruptions of Rome. They 
did not pretend to establish freedom of conscience. 
They did not allow to those who differed from them 
the credit of sincerity. They claimed themselves 
to be the sole possessors and preachers of evangeli¬ 
cal truth, and they brooked no opposition to their 
teaching and tolerated no dissent from their opin¬ 
ions. For such dissent John Calvin caused Michael 
Servetus, co-reformer with him, to be publicly 
burned in Geneva at the stake; and John Knox, 
and Martin Luther, and the rest of them—all, we 
believe, except Melanchthon, whose kindly nature 
and spirit of moderation always counselled against 
extreme measures—never hesitated, when they came 
into possession of the temporal power, as they all 
did or sought to do, to use that power, not only 
against their opponents of the Roman Church, but 
equally and sometimes even more fiercely against 
other seceders from that Church who happened to 
espouse dogmatical theories different from those 
adopted by themselves. Neither in theory nor in 


CONSTITUTIONAL AND CIVIL LIBERTY. 


249 


practice did they set up the principle of religious 
liberty of freedom of conscience. On the con¬ 
trary, they distinctly repudiated any such position 
on their part. Their sole and only claim was to 
restore the purity of evangelical truth, obscured, 
as they alleged, by the corruption of the Latin 
Church. Of course, they claimed the right for 
themselves to be free to insist upon their theories, 
hut beyond this they never extended the idea of 
freedom of conscience. Their freedom of con¬ 
science, in other words, was freedom for themselves 
and their followers from opposition and attack by 
the adherents of Rome; hut coupled with the right 
to compel the adherents of Rome and all others, 
by force of arms even, if necessary, to accept the 
truth of Christianity, according to their understand¬ 
ing of that truth. 

In pursuance of this idea, when most of the 
States of Horth Germany, Denmark, Sweden, Nor¬ 
way, Holland, Scotland and England had become 
imbued with the tenets of the Reformers, and the 
civil authorities of those countries found it conve¬ 
nient to join in the revolution against the Roman 
Church, they, one and all, established State 
Churches, made the ecclesiastical organization a 
part of the machinery of the State, precisely as the 
ancient pagan nations had done, and pursued with 
unrelenting rigor and merciless cruelty both those 
who would have adhered to the Roman Church and 
those who would have preferred other dissentient 
theories. By such persecution all dissent was ex¬ 
tirpated from most of the countries mentioned; and 
in most of them at the same time all Civil Liberty 


250 


HISTORY OF THE DEVELOPMENT OF 


was ruthlessly crushed out, and absolutism was es¬ 
tablished. And it is a peculiar fact that, wherever 
the Protestantism was most rigid and exclusive, the 
absolutism in government became most marked. 
And it is also a fact that, for the three centuries 
during which this rigid rule of Protestantism lasted, 
and until it came to he broken by the commotions 
resulting from the French Pevolution, the despotic 
authority of the monarchs in civil matters was not 
relaxed. The States of P^orth Germany, Denmark, 
Sweden and Porway, at the period of the Reforma¬ 
tion and in consequence of that Reformation, be¬ 
came absolute and despotic monarchies, whereas 
before that there had been a great relaxation of 
feudalism in all of them, and there was no trace 
whatever of civil or religious liberty in any of them 
for upwards of three centuries. We know what 
bitter persecutions took place in Holland, Scotland 
and England, and what disgraceful penal laws were 
enacted in all those countries to suppress dissent 
and to enforce conformity to the ecclesiastical estab¬ 
lishments provided by law, and that not until the 
present nineteenth century were those infamous 
laws repealed or modified. It may be said, in fact, 
that they have not yet been entirely swept away. 

Row, from all this it is very clear that, whatever 
of justification there may have been in the Lutheran 
Reformation; whatever of truth there may he in 
Protestantism; whatever of corruption there may 
have been m the Roman Church, and even upon the 
assumption that the Reformers may have been en¬ 
tirely right in their position, the Reformation cer¬ 
tainly did not establish religious liberty, and did 


CONSTITUTIONAL AND CIVIL LIBERTY. 251 

not pretend to establish it; and it is amazing that, 
in view of the uncontroverted and undeniable facts, 
the pretence should ever have been indulged bj any 
intelligent person that the Reformation had any 
such result or etfect. The plain and palpable truth 
is, that the immediate result of the Reformation 
was to establish a system of religious intolerance 
such as had not been known before in the world; 
to restore and strengthen the forces of feudalism 
and despotism; and, in the matter of civil and re¬ 
ligious liberty, to put the world back at least three 
centuries. It is the result, therefore, either of gross 
ignorance or of deliberate and wilful perversion of 
the truth to allege that the Lutheran Reformation 
was productive either of Civil or Religious Liberty. 
Least of all did it promote religious liberty, of 
which its adherents were for three centuries the 
most persistent and unrelenting enemies. Even in 
free Switzerland, where, from their use of liberty 
for three centuries, more tolerance might have been 
expected, the fires of religious persecution broke 
out with the greatest intenseness wherever the Ref¬ 
ormation succeeded in effecting a foothold. Ror is 
it any answer to this exposition of the plain truth 
of history that the Southern nations of Europe 
which continued to adhere to the Church of Rome 
at the same time or soon afterwards entered upon a 
similar career of intolerance and despotism. It would 
not be difficult to trace this result to the same cause 
which operated in the northern countries. 

It was not until the first outburst of religious 
frenzy and savage intolerance had expended itself 
in its own violence, after the lapse of about a ceii- 


252 


HISTORY OF THE DEVELOPMENT OF 


tury of fierce and cruel persecution, that in those 
nations of Europe in which the adherents of the 
different creeds continued to co-exist, as in France, 
Germany, Holland and England, men of modera¬ 
tion and humanity sought to inculcate the doctrine 
of forbearance and tolerance. But the spirit of big¬ 
otry and hatred was too powerful then, and for a 
long time afterwards in Europe, to permit the prac¬ 
tical application to any great extent of the gospel 
of moderation upon that continent. It was reser\^ed 
in the councils of Divine Providence for our own 
America, which had already been marked out as the 
home of civil liberty and as a place of refuge for the 
oppressed of Europe, to proclaim and to put into prac¬ 
tical operation the principles of religious liberty also, 
without which our civil liberty would have been a 
delusion and a mockery. To George Calvert, Lord 
Baltimore, the founder of the Colony of Maryland 
(a.I). 1632), and Koger Williams, founder of the 
Colony of Bhode Island (a.d. 1643), the honor is 
due of the first establishment of religious liberty 
and freedom of conscience as a part of the funda¬ 
mental polity of the State, not only in our Western 
World, hut in all the modern world; and their 
noble example was followed nearly fifty years after¬ 
wards by William Penn, in the foundation of his 
Colony of Pennsylvania (a.d. 1681). These three 
must justly be regarded as the fathers of religious 
liberty, and their three colonies as the seats wherein 
first was nurtured and exemplified in practice the 
principle of the toleration of all religious systems 
not antagonistic to our Aryan Civilization, as well 
as their equality before the civil law. 


CONSTITUTIONAL AND CIVIL LIBERTY. 


253 


It is true that a serious check was given to the 
movement when, in the land of its origin, the Col¬ 
ony of Maryland, under the influence of the malig¬ 
nant spirit of the English Revolution of 1688, the 
Protestant Colonists seized upon the Colony, tem¬ 
porarily ousted the Lords Proprietors from their pro¬ 
prietary rights, and proscribed their religion and 
the religion of their fellow-colonists, who had in¬ 
vited them to their shores. A more disgraceful act 
of perfldy, treachery and ingratitude does not dis¬ 
grace the annals of the human race than this infa¬ 
mous proceeding. But fortunately it only checked 
the movement; it did not prevent its gradual growth. 
And when the malign influence of the country, 
from which the suggestion of such base ingratitude 
had emanated, was brought to an abrupt termina¬ 
tion by our Declaration of Independence, the minds 
of men were ripe for the general acceptance of the 
principles of Calvert, Williams and Penn. 

The founders of our Constitutional System of 
government embodied those principles in the Con¬ 
stitutions of all the States; and when the Federal 
Constitution came to be formulated, the work had 
been so well done in the several States that it was 
not deemed necessary by the framers of that instru¬ 
ment to make any provision therein in regard to 
religious liberty and freedom of conscience, further 
than to enact, in the Third Section of the Sixth 
Article, that ‘‘ no religious test shall ever he re¬ 
quired as a qualification to any oflice or public trust 
under the ITiiited States.” But the people seem 
not to have been entirely satisfied with this recog¬ 
nition of the principle; and the very first of the 


254 


HISTORY OF THE DEVELOPMENT OF 


Ten Amendments proposed simultaneously with the 
adoption of the Federal Constitution and soon after¬ 
wards unanimously adopted, and which have always 
been regarded in the nature of a bill of rights, 
provided that “ Congress shall make no law respect¬ 
ing an establishment of religion or prohibiting the 
free exercise thereof.” As already intimated, simi¬ 
lar provisions had previously been inserted in the 
Constitution of the several States. 

It has been heretofore noted that, in the tirst 
charter for the establishment of the Colony of Vir¬ 
ginia (a.d. 1606), the evil spirit of intolerance was 
sought to he introduced into the Hew World in 
the provision that none but members of the Estab¬ 
lished Church of England should be admitted into 
the Colony, a provision which we find to have 
been rigidly enforced on more than one occasion, 
and notably when some Puritan settlers had at¬ 
tempted to establish themselves in Virginia and 
were summarily expelled and took refuge in Mary¬ 
land. But if, in the days of intolerance, Virginia 
was the first colony in America to establish the odi¬ 
ous system of intolerance and of persecution on 
account of religion, credit is justly due to her for 
being the leader also in the general movement for 
religious liberty at the time of the separation from 
England. The illustrious Thomas Jefferson^,o whom 
perhaps more than any other statesman of the time, 
scarcely excepting even George Washington him¬ 
self, we owe the final fashioning of our republican 
institutions, was the principal author of the Bill of 
Rights and Constitution of the State of Virginia, 
adopted in June, 1776, some days before the promul- 


CONSTITUTIONAL AND CIVIL LIBERTY. 255 


gatioii of the Declaration of Independence at Phila¬ 
delphia, and which afforded the substantial ground¬ 
work for a great part of the Federal Constitution 
formed eleven years afterwards. The Sixteenth 
Section of this Bill of Rights was in these terms: 

‘‘ That religion, or the duty which we owe to our 
Creator, and the manner of discharging it, can be 
directed only by reason and conviction, not by force 
or violence; and therefore all men are equally en¬ 
titled to the free exercise of religion, according to 
the dictates of conscience; and that it is the mu¬ 
tual duty of all to practice Christian forbearance, 
love and charity towards each other.” 

Embodied as fundamental principles in our or¬ 
ganic laws, both State and Federal, and intended to 
give practical effect in civil life to the precept of 
Christian charity, and to that other precept likewise 
which Incarnate Wisdom gave to the unprincipled 
adherents of a corrupt and factious Judaism who 
sought to ensnare him as between the hostile claims 
of the authorities of the time—Give unto Ciesar 
the things that are Csesar’s, and unto God the 
things that axe God’s”—these constituf.onal pro¬ 
visions of ours are intended to insure to us the 
completion of the policy of Lord Baltimore and of 
the noble edifice of Civil Liberty. 

But we are not to understand that we have abso¬ 
lutely secured religious liberty and freedom of con¬ 
science. By sad experience we know the contrary. 
Constitutions do not necessarily destroy passions 
and prejudices. There are those in whom yet sur¬ 
vives what I have so frequently designated as the 
spirit of Odinism,the savage and bloodthirsty spirit of 


256 


HISTORY OF THE DEVELOPMENT OF 


the pagan fanaticism. The demon of intolerance yet 
often enough breaks forth from the restraint sought 
to be imposed upon him, and ignorance and fanaticism 
too frequently ignore the duty of loyal adherence to 
constitutional principle. But it is something to 
have emphasized in fundamental law the eternal 
sense of justice implanted in the consciences of all 
right-minded men, and to have substituted the prin¬ 
ciple of forbearance for the brutal intolerance of 
persecution. 

are we to understand, on the other hand, 
that our Constitutional guarantees absolutely di¬ 
vorce our civil institutions from all connection with 
religious belief and religious observance, and con¬ 
vert our governments into systems of organized 
atheism or agnosticism. Our governmental organi¬ 
zation is Christian. Its morality is Christian, with 
a tolerance for the morality of Judaism, upon which 
it has been founded. The basis of its morality is 
to be found in the Ten Commandments and in the 
Sermon on the Mount. Its Common Law includes 
the enforcement of the most salient requirements of 
the Christian Religion. It enforces the Christian 
Sabbath. Call is made upon the God of Sinai and 
of Calvary to attest the true and faithful perform¬ 
ance of its obligations. And if in some of its transac¬ 
tions, notably in its ordinances on the subject of 
marriage and divorce, it is not wholly in accord 
with Christian ideas of morality, it is only a proof 
that man is still a most imperfect being, never the 
e(pial of his ideal, never wholly filling the measure 
of the rule which the law of his nature and the di¬ 
vine spirit implanted in his soul require him to 
adopt as the standard of his action. 


CONSTITUTIONAL AND CIVIL LIBERTY. 257 


CONCLUSION. 

It is time tliat I should bring these lectures to a 
close. In doing so I may ask the question whether 
the contest of the ages, the struggle for civil lib¬ 
erty, the war of Ormuzd and Ahriman, the war of 
good and evil, is at an end. Far from it. The 
war yet rages, and will no doubt continue to rage 
until the day of 

“The last of liunian mould 
That sliall Creation’s death behold, 

As Adam saw lier prime.” 

It is true that everyAvhere throughout the civilized 
world the people have reconquered their heritage 
of freedom from the usurpers, the feudalists and the 
absolutists, who would have kept them forever un¬ 
der the dominion of brute force. But their victory 
is nowhere comjilete. Apart from the fact that 
only the Aryan nations, or a large part of them, 
have recovered their birthright, and that outside of 
the pale of the Aryan Civilization only one nation, 
Japan, out of all the populous races, including two- 
thirds of tlie people of the globe, has as yet entered 
upon a career of civil liberty, the success that has 
been accomplished has only placed them in the pos¬ 
session of the citadel of liberty. Their struggle 
now is to retain their conquest against their insidi¬ 
ous foes, and to use that conquest well, so that the 
results of it may be transmitted unimpaired to pos- 

17 


258 


HISTORY OF THE DEVELOPMENT OF 


terity. It has been well said that eternal vigilance 
is the price of liberty,” and we must realize the fact 
that the ordeal of incessant vigilance is a more try¬ 
ing ordeal than that of the fiery energy of battle. 
Feudalism and absolutism have been overthrown; 
all the nations have established constitutional guar¬ 
antees; the cause of civil liberty is everywhere 
triumphant; and yet we have the remnants of feu¬ 
dalism and absolutism still struggling to entrench 
themselves behind the broken barriers of their un¬ 
hallowed privileges. ^ 

But it is not so much from enemies without as 
from enemies within the citadel of freedom that 
future danger is to be apprehended. The socialist, 
the anarchist, the assassin, are worse enemies ot 
Civil Liberty than the feudalist and the absolutist. 
Ominous was the simultaneousness of the popular 
uprisings of 1848 in Europe. They gave evidence 
that a new and dangerous element had entered ac¬ 
tively into European politics, and that secret oath- 
bound organizations had seized upon the revolu¬ 
tionary movement. There had been intimation of 
the existence of such organizations in the agitation 
that precipitated the French Revolution. There 
was no doubt of their effective influence in the con¬ 
trol and management of the revolutions of Spanish 
America, whose so-called republics their intrigues 
and intestine conflicts have ever since kept in con¬ 
stant turmoil. But on a larger scale than ever be¬ 
fore they made themselves felt in the European 
Revolutions of 1848; and it is beyond doubt that 
since that time they have been potent in shaping 
the politics of the various European nations. It is 


CONSTITUTIONAL AND CIVIL LIBERTY. 259 


unfortunate that their attacks have been directed 
not only against the thrones of monarchs, but like¬ 
wise against the altars of religion. For these or¬ 
ganizations are thoroughly atheistical in their ten¬ 
dencies. They would tear down the whole social 
fabric, and would reconstruct it, if they would re¬ 
construct it at all, upon the lines of the demon 
republic of Robespierre. The weapon with which 
they would mainly perform their work would seem 
to he the dagger of the assassin. As we have said, 
they have kept Mexico and South America in 
almost constant turmoil; they have controlled the 
French Republic in the interest of atheism ; ^^nd if 
thus far Parliamentary government in the other 
countries of Europe has not fulfilled the sanguine 
expectations of its friends, it is mainly because 
these secret organizations, through their lodges, 
have controlled the Parliaments. They have even 
invaded our own country, where there is absolutely 
no justification for their existence. The deadliest 
struggle yet before us in the cause of Civil Liberty 
is with these secret organizations; and it will be 
well if they do not drive us into the arms of mili¬ 
tary despotism to effect their extermination, as 
Hulaku, the Tartar, effected the extermination of 
the Mohammedan Ismaelian Assassins, who kept 
both Europe and Asia in awe of them for several 
centuries during the Middle Ages. 

[N^ext to secret conspiracy. State socialism is the 
worst enemy which Civil Liberty has to fear to-day. 
The doctrines of socialism, communism, agrarian¬ 
ism, and all the similar theories of social polity 
with which so many persons, ignorant of the expe- 


260 


HISTORY OF THE DEVELOPMENT OF 


rience of the past, would again afflict and disturb 
the social order, are as fatal to Civil Liberty and 
constitutional government as is the worst form of 
Csesarism. Indeed, Caesarism is the invariable ref¬ 
uge of society from such intolerable violations of 
individual rights as are involved in all these theo¬ 
ries. It behooves us earnestly to defend the cause 
of liberty against them and their promoters. 

In the words of England’s greatest Poet Laure¬ 
ate, we are “ the heirs of all the ages, foremost in 
the files of time;” and the heritage, which it has 
been ours to receive from the men who founded 
our constitutional and civil liberty, it is our sacred 
duty to transmit unimpaired, and even enlarged, to 
those who come after us. To set before you the 
value of that heritage, its origin and development, 
and the struggle whereby it has been required to be 
redeemed, and thereby to induce our higher appre¬ 
ciation of it, has been the purpose and effort of 
these lectures. What I called in the beginning 
God’s last and best gift to man, free will, has be¬ 
come crystallized in social life and governmental 
policy as Civil Liberty, renewed to man by the reve¬ 
lation of Jehovah on Mount Sinai, and confirmed 
by the Redeemer on the Mount of Olives. The de¬ 
posit of Civil Liberty and religious truth has been 
equally consigned to us, and we should sacredly 
guard both as our heritage. If we abuse both, as 
Israel did, we will share the fate of Israel. Unfor¬ 
tunately we have it in our power, as Samson had, 
to tear down the edifice around us and to bury our¬ 
selves and our posterity in its ruins. But to pre¬ 
serve the temple, to sustain it, to perpetuate the 


CONSTITUTIONAL AND CIVIL LIBERTY. 261 


consecrated edifice—this requires earnest, sustained, 
heroic effort. If in hours of political despair and 
darkness—and,unfortunately, such hours come often 
enough—any memory of the contest, such as I have 
essayed in these lectures to picture it to you, will 
come to nerve you to do your duty in the battle for 
justice, truth and right—for the cause of God and 
man—for true Religion and true Civil Liberty, 
which are one and inseparable—it may he that 
what I have uttered here will not have been uttered 
in vain. 


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